Tributes to the late Lord Belstead

Baroness Amos: My Lords, I rise to pay tribute to Lord Belstead, who died on Saturday 3 December, aged 73. Lord Belstead was known to all as a mild-mannered and gentle man whose courteous ways were sometimes mistaken for shyness. He was hard working, sincere and of great integrity. It is right that we should pay tribute to him today.
	The noble Lord came from political stock. His father was a long-serving Conservative MP for Ipswich. However, the young Lord Belstead showed little interest in politics. After an education at Eton and Christ Church, Oxford, he worked as a prep school master and later established himself as a Suffolk farmer. These experiences shaped the ideas which he was to bring to the House after the death of his father in 1958. In his maiden speech in 1964, on the Newsom report on education, he drew on his own teaching experience. He argued for extending the school leaving age to 16, for better pay for teachers in problem areas, and for cutting classroom sizes.
	Lord Belstead maintained a lifelong interest in education. He chaired the Association of Governing Bodies of Public Schools between 1974 and 1979, and the Independent Schools Joint Committee between 1977 and 1979. He gained the respect of his colleagues and, in 1970, he was appointed a junior Minister in the Department of Education and Science. There, he found himself working closely with the noble Baroness, Lady Thatcher, then Secretary of State for Education. A series of other jobs followed: in the Northern Ireland Office, the Home Office, the Foreign Office, the Ministry of Agriculture and the Department of Environment. The range of these posts demonstrates his intellect and versatility.
	In 1987, Lord Whitelaw resigned the leadership of this House following a stroke, and Lord Belstead was announced as his successor. Pundits at the time wrongly suggested that he would be a short-term appointment until someone else, a political heavyweight, was found. Lord Belstead was described as solid and hard working, safe rather than exciting. But this description underplayed his many strengths. The noble Lord was popular and respected in the House. He had built up a reputation for common sense and, above all, he was respected for his reasoned and painstaking efforts to defuse argument and to reply in detail to points made during debates. He was trusted by his colleagues in government and steered difficult legislation through this House. The former Secretary of State for Energy, the noble Lord, Lord Walker of Worcester, insisted that Lord Belstead should take gas privatisation through this House.
	So the pundits got it wrong, and Lord Belstead was Leader of the House of Lords and Lord Privy Seal from 1987 to 1990. Under John Major's Prime Ministership, Lord Belstead was moved to the Northern Ireland Office as deputy to the Secretary of State, a post which he held in tandem with the role of Paymaster General. This was his last ministerial post. He then served as chairman of the Parole Board from 1992 to 1997.
	Lord Belstead was very attached to his home county, Suffolk. He was appointed a justice of the peace in 1962, and in 1994 he was appointed Lord Lieutenant of Suffolk, a role he performed until 2002. Towards the end of his tenure, he had the pleasure of greeting and accompanying Her Majesty the Queen and the Duke of Edinburgh during their Golden Jubilee tour of Ipswich, Stowmarket and Bury St Edmunds.
	Throughout his life, Lord Belstead was a keen sports enthusiast with a particular passion for tennis. He served as chairman of Suffolk Playing Fields Association, president of Felixstowe Lawn Tennis Club and president of the Suffolk Lawn Tennis Association. He played tennis for the county, and was a member of the All-England Lawn Tennis Club and the MCC.
	I am sure the House will wish to join me in expressing our sympathy to Lord Belstead's sister, the Honourable Jill Ganzoni, and to all his friends.

Lord Strathclyde: My Lords, I begin by thanking the Leader of the House for her tribute to Lord Belstead, which will have been appreciated by Peers right across the House. She has rightly reminded us of his long public service as a Minister, spanning some 22 years, 17 of them as a Minister in six major departments. It is a remarkable record, even if one were not to take into account his distinguished service as Leader in this House, which is closest to all our hearts.
	It says a lot about John Belstead that, for all that great public career, he remained largely unknown to the public, and indeed to most media commentators. Even now, in this House, many Peers will not remember him. He was decidedly not a figure of the "new politics" or of the age of spin, but somehow I do not think that would have bothered him at all. He was a modest man—none more so—but he did what he thought was right in a quiet, unfailingly polite but resolute fashion. He was a character that this House instinctively liked: understated, courteous, loyal and a listener.
	With all the difficulties associated with succeeding Willie Whitelaw, he rang the changes by leading in a very different style. Not for him chairing great meetings on policy—no, you always knew where to find John Belstead: sitting on the Front Bench for hours, listening to our debates. I have to admit that it was not always comfortable for the Front Bench Minister to find the Leader sitting next to him.
	The House also liked his way on policy, which was to seek consensus, to build from the facts and understand the other point of view. He was a genuinely gentle man; a compassionate conservative, long before that phrase was first heard. He was an enlightened Home Office Minister with a deep concern for those in prisons, which saw him agree to serve as chairman of the Parole Board after stepping down from the Government. He had a lifelong and informed interest in education. The great trust placed on him by that shrewdest of judges of men, the late Viscount Whitelaw, says much about the respect he merited.
	As the noble Baroness reminded us, he was Leader of the House at a sometimes abrasive time; a time of sharp public conflict on some areas of policy that lapped over into this House. He would have preferred, I am sure, not to have wielded some of the strong whips he agreed to wield. But in this, too, he did his duty, but never in a way that weakened his deep sense of loyalty to the whole House and to our shared values. We will all miss him, and we are much the better for having seen his example.

Lord McNally: My Lords, in the other place the greatest accolade a Member can have is that he is a good House of Commons man. Lord Belstead, by the same token, was a good House of Lords man. He had what we like to think are the House of Lords attributes: what the Times obituary described as "civilised, courteous and patient". He had, as we have heard, a long and distinguished ministerial career under three Prime Ministers and three Conservative Party leaders—an achievement that was harder to achieve in his day than recently.
	We have heard that he came from exotic stock, his father being called Francis Ganzoni, but he exuded an Eton and Christ Church polish, and something that suggested an aristocracy of a longer lineage. I loved the story in the obituary in the Times. As a Foreign Office Minister visiting Istanbul, he said how happy he was to be in Constantinople.
	As we have heard, Lord Belstead became Leader of the House during turbulent times and had the almost impossible task of following Lord Willie Whitelaw. When he became Leader, I understand that Mrs Thatcher's instruction was "Be robust". After one of her defeats in the Lords, she asked Lord Belstead, "What are all the Tory Peers whom I have created doing?" According to her biographer, the answer was that many of them were sacked Cabinet Ministers who owed her no favours while the rest were captains of industry who were happy to accept their titles but never went near the House. I am sure that the noble Baroness, Lady Amos, is relieved that things have changed.
	I said that Lord Belstead was a House of Lords man, but he also held one important non-parliamentary public office at an important time. He was chairman of the Parole Board from 1992–97. I never had the pleasure of working directly with Lord Belstead, but my noble friend Lord Dholakia was a council member of the National Association for the Care and Resettlement of Offenders during this period. This morning I asked him for his assessment and he told me:
	"It was Lord Belstead who implemented the reforms in our Parole System initiated by Lord Hurd and drawn up by Lord Carlisle of Bucklow. He did so with great distinction. At a time when the debate too often centred around 'hang them and flog them', it was people like Lord Belstead who worked to make our criminal justice system more effective and civilised".
	"Effective" and "civilised"—not bad epithets from a political opponent. I have no hesitation in using them today, not only about Lord Belstead's term at the Parole Board but about his contribution to public life. I pay tribute to those qualities from these Benches and send our sympathy to his sister and friends.

Lord Williamson of Horton: My Lords, on the behalf of the Cross Bench Peers, I should like to join in the tributes to the late Lord Belstead. The Cross Bench Peers have always appreciated the role of the Leader of the House, which transcends a political role and represents also a voice for the House as a whole. Lord Belstead fulfilled this role with distinction, both as Deputy Leader for four years and as Leader of the House and Lord Privy Seal for a further period between 1987 and 1990.
	I was a senior official in the Cabinet Office for part of this time and I know the esteem with which Lord Belstead was regarded by his political colleagues and, if it is a compliment, by senior officials. In addition to his role in the House of Lords which we remember today, I pay tribute to him for his capacity, during a long political career in high office, to master difficult issues and briefs at the Department of Education and Science, the Northern Ireland Office, the Home Office, the Foreign and Commonwealth Office, the Department of Environment and the Ministry of Agriculture, Fisheries and Food. That pretty well covers the whole of public life and he covered all those issues with distinction.
	The Ministry of Agriculture, Fisheries and Food may be a somewhat unloved department, although not by me because I am an old boy of that ministry. I worked there when I was young and I stress how difficult some of the problems were. I remember personally and salute Lord Belstead's work there. But, first and foremost in the House today, I pay tribute from all the Cross-Benchers to a former Leader of the House who will be greatly missed.

The Lord Bishop of Chelmsford: My Lords, I am very happy on behalf of these Benches to be associated with the remarks already made about the late Lord Belstead. His quiet and courteous character clearly won him respect across the political divides and throughout this House. Indeed, our political life and the practice of government have been enriched by his quiet and self-effacing service. I hope that the House will forgive someone from Essex saying on behalf of the wider community of the east of England how much his leadership and service to the people of Suffolk, both in the farming community and as its Lord Lieutenant, have been appreciated. He will be missed by many in that county, in this House and in the wider community. We send our sympathy to his sister and friends. May he rest in peace.

Lord Waddington: My Lords, I am sure that the House will forgive me for saying a few words, because I succeeded Lord Belstead as Leader of the House. The announcement that I was coming here from the House of Commons to take his place must have come to him as an unpleasant surprise, for he had served loyally and well and had no reason to think that he would be replaced on the change of Prime Minister; but such is politics and John not only took the change in his fortunes with good grace, he agreed to continue to serve in the Government in what obviously had to be a more junior role, and he gave me all the support that he possibly could. He chose to leave the Government when I left in 1992.
	I shall always be grateful to John for his loyalty and his friendship, and I count myself lucky to have known such a fine man and such a dedicated public servant.

Lord Brooke of Sutton Mandeville: My Lords, it may be apposite to follow my noble friend Lord Waddington. As a result of the disability which eventually took John Belstead to his death, I scarcely saw him during my four years or so in this House, but the reminiscences concerning my late noble kinsman and my late noble relative were so affectionate and vivid that I vicariously felt that I was, in fact, more often in the House with him.
	However, I wish to make a brief reference to the one occasion when he and I overlapped in a government department. When my noble friend Lord Waddington became Leader of your Lordships' House, John Belstead came to Northern Ireland, where he took over the vacancy left by my noble friend Lord Cope, who was removed in what I still call a shuffle, rather than a reshuffle. Lord Belstead became my understudy in the place of my noble friend Lord Cope. I do not think that he had ever been a soldier, but the office of being the understudy in Northern Ireland means that you become the security Minister in the Province, and I pay the loudest possible tribute to the fortitude and integrity with which he discharged that role without having had a military background. I also pay tribute to the manner in which he ran the Province during the general election in 1992, when, by definition, the other Ministers were fighting the election.
	I close on another personal note. He was a member of "Nobody's Friends"—a body which dines in Lambeth Palace, half of whom are lay people and half of whom are ecclesiastical. I will not explain why what I am about to say happens, but the group is called "Nobody's Friends" because people who are elected to it have to make a seven-minute speech to explain why they are nobody's friend. It will not surprise your Lordships' House that John Belstead did that particularly well.

China: Presidential Visit

Lord Avebury: asked Her Majesty's Government:
	What subjects the Prime Minister discussed with President Hu.

Lord Triesman: My Lords, my right honourable friend the Prime Minister and President Hu discussed a wide range of bilateral and international issues. They agreed to strengthen co-operation in key areas, including migration, education, culture, trade and investment, and to develop dialogue and co-operation on global issues such as climate change and sustainable development. The Prime Minister also encouraged China to institute political reforms to match its strong record of economic growth.

Lord Avebury: My Lords, did the Prime Minister have time to urge the president to enter negotiations with the Dalai Lama on a lasting and legitimate solution to the problem of Tibet? Did he raise a long-running sore that has been taken up by the Foreign Office on many occasions regarding the jamming of BBC Mandarin language broadcasts to China and the blockage of access by Chinese users of the Internet to all the BBC sites, except those in which the English language is taught? Is it not time that the Chinese behaved in a manner consonant with everyone else's international responsibilities?

Lord Triesman: My Lords, as far as I am aware, the specific issue of relations with the Dalai Lama did not come up during the discussions, but we regularly encourage meetings between representatives of the Dalai Lama and the Chinese Government, and I understand that talks in Berne earlier this year have been the most substantial to date. It is not yet possible to say that significant differences have been overcome, but there seem to have been some discussions.
	I do not think that the jamming of the BBC World Service was discussed specifically during the meeting, but I, as the Minister responsible for the BBC World Service, had those discussions with the Chinese. I cannot say that that led to the unblocking of the service, although it was not blocked for about one month directly following the talks. I regret to say that it is blocked again.

Lord Clarke of Hampstead: My Lords, my noble friend will recall that only last Monday, in reply to a short debate in Grand Committee, he mentioned the obstacle of Russia and China in opening up the human rights agenda in the United Nations. Did our Prime Minister seek the co-operation of President Hu in the discussions on Zimbabwe and Burma and the violation of human rights in those countries?

Lord Triesman: My Lords, I can report the generality of the discussion. The Prime Minister raised a number of issues with President Hu, including human rights and political reform issues. A list of political prisoners of particular concern was handed over during the margins of the meeting. I can also report that my right honourable friend the Foreign Secretary, in his meeting with the Chinese Foreign Minister, encouraged the Chinese to make substantive progress on human rights and to announce a timetable for the ratification of the international covenant on civil and political rights. There was a robust exchange with the Chinese Foreign Minister about the international parliamentary convention on Tibet as well. Overall, there was a broad discussion on human rights issues.

Lord Howell of Guildford: My Lords, I shall broaden the question asked by the noble Lord, Lord Clarke of Hampstead. Did the Prime Minister, when talking to President Hu Jintao, raise China's inclination to support all around the world very undesirable rogue states? Mr Mugabe and Zimbabwe have been mentioned, as has Burma. There is also Sudan, and China's very strong support for Iran and a huge energy contract with that country. Did the Prime Minister not explain to the Chinese that in the longer run it would be very much to the benefit of their people, as China assumes a responsible place in the comity of nations, if China would work with the rest of us, and with the West, in bringing these deviant nations to heel rather than financing and supporting them?

Lord Triesman: My Lords, the noble Lord rightly introduces a list of countries in which the Chinese could make a much more positive contribution in a modern international setting. It is not possible during a visit of this kind to raise every one of those countries, just because of the length of the list, but a range of issues was raised in the general areas of human rights and political reform. Elsewhere in government—it has fallen to me on occasions to do this—we have discussed the more positive action that could be taken. I have had a recent discussion with the Chinese ambassador on the question of Sudan. I am hopeful that we may make some progress because China plainly has considerable influence right across Africa and, indeed, elsewhere.

Baroness Northover: My Lords, given China's massive industrial expansion and vast coal reserves, did the Prime Minister in his discussions on climate change raise with the Chinese what they were doing to take forward clean coal technology?

Lord Triesman: My Lords, I am not aware of a discussion on clean coal technology during that period. If there was one I will find out about it and respond. The general issues of climate change have been discussed in a number of meetings and, I believe, were discussed on the fringes. The countries whose economies are growing fastest and which are looking for sources of fuel often turn to carbon-based fuels because they are the most readily available. That is something we have to work with. They want the increase in their economic activity, but I am sure that we do not want to see it at the cost of wrecking the entire environment.

The Lord Bishop of Chelmsford: My Lords, did the Prime Minister raise with President Hu questions about religious freedom in China? Has the president set a date for a visit to China by the UN Special Rapporteur on religious freedom, which I think has been agreed in principle?

Lord Triesman: My Lords, it has been agreed in principle. I do not think a final date for it has been agreed for the whole of the process, although the initial visit took place from 21 November to 2 December. I understand from initial reports that people will want to see further visits because there was some obstruction to the purposes of that initial visit.
	Religious freedom issues—the treatment of Christians, the Falun Gong, the Uighurs and other religious practitioners in China—are raised all the time. We have regularly tried to insist that the UK/China human rights dialogue and other ministerial meetings provide an opportunity for doing that.

Lord Faulkner of Worcester: My Lords, was the EU embargo on arms sales to China discussed with the president? Can the Minister give an assurance that the Government's position remains that the arms embargo can be lifted only if China improves its human rights record, ceases the almost indiscriminate use of the death penalty and ends its potential aggression to its neighbours?

Lord Triesman: My Lords, our position has not changed at all. There has to be satisfaction on a number of fundamental issues as laid out in the conclusions of the European Council. The Government will consider those issues if those improvements are made.

Bracken

Lord Greaves: asked Her Majesty's Government:
	What steps they are taking to stop the spread of bracken on mountains, moorland, heaths and commons.

Baroness Farrington of Ribbleton: My Lords, measures for agreed bracken control as part of a wider environmental management programme have been available for several years in England for participants in Defra's agri-environment schemes—in particular, the Environmentally Sensitive Areas and Countryside Stewardship schemes. Similar measures have been rolled forward into the more recently introduced Higher Level Environmental Stewardship scheme.

Lord Greaves: My Lords, I am grateful to the Minister for that Answer and setting out those measures. Does she not agree, however, that the main problem with bracken is that it is still spreading, often at an alarming rate? Does she not think that a new initiative is needed to bring forward all those concerned—conservationists; keepers of grazing animals; representatives of recreational users of the hills and moors of all kinds, from walkers and picnickers to grouse shooters—to put together a new co-ordinated strategy to halt the advance of this invasive weed?

Baroness Farrington of Ribbleton: My Lords, the government-funded Countryside Survey has estimated changes in the extent of bracken between 1984 and 1990, and 1990 and 1998. There was a marked decline during the first period, and no significant increase during the second. We intend to give further consideration to whether bracken control and undergrazing raise a cross-compliance issue. We do not believe that bringing together all the different parties in one large forum would help, because of local variations. However, all the bodies concerned are involved in various aspects and are kept informed, and we seek their views.

Lord Crickhowell: My Lords, there has been an alarming spread of bracken in the hills in recent years, and not just in England. As bracken is carcinogenic, what research are the Government commissioning into the carcinogenic effects of bracken, particularly on water supplies in the areas most affected?

Baroness Farrington of Ribbleton: My Lords, it is alleged that bracken is carcinogenic, but I am not aware of any scientific evidence to support that claim. Research is continuing into various aspects of management control. I am not aware of any specific research into the potential ill-health effects of bracken, or bracken in watercourses.

Lord Crickhowell: My Lords, with the permission of the House, I shall say that I have clearly done more research than the Minister. There has been extensive research in many parts of the world, particularly in Brazil and Japan. I do not think there is any doubt at all that bracken is known to be carcinogenic.

Baroness Farrington of Ribbleton: My Lords, if I am ill informed and the noble Lord is well informed, I would appreciate correspondence on the matter.

Lord Berkeley: My Lords, is my noble friend aware of the development of an animal that likes eating bracken? Is not the best way to get rid of bracken to find something that enjoys eating it?

Baroness Farrington of Ribbleton: My Lords, bracken is eaten by animals, particularly cattle. I do not know to what degree they enjoy it or prefer it to any other diet. We have to consider whether we need a national strategy in this area because, as I said before, we need to look at whether cross-compliance will have any effect. We are pressing proposals to the European Commission to have cattle grazing as a conservation management option as part of the higher level environmental scheme project.

The Countess of Mar: My Lords, is the noble Baroness aware that, although I have never tried it, very young shoots of bracken are supposed to taste very much like asparagus when they are boiled? Perhaps we can eat it.

Baroness Farrington of Ribbleton: As a matter of fact, my Lords, I am aware of the information from the noble Countess. I understand that in Japan very young fronds of bracken are eaten, and that there is a higher than average incidence of cancer of the stomach. I also understand, however, that no scientific study has confirmed a "cause and effect" link. In the light of being asked before by the noble Countess whether I knew about eating grey squirrels, I asked whether anybody ate bracken.

Lord Phillips of Sudbury: My Lords, I am the happy owner of a few acres of ancient woodland in John Belstead's beloved county—infested with giant bracken, incidentally. Is the noble Baroness aware of bracken being of any use to man or beast, apart from the shoots?

Baroness Farrington of Ribbleton: My Lords, cattle certainly graze on it. It produces a particularly valuable variety of habitat and shelter—along with other shrubby vegetation on moorlands—for whinchats, twites, nightjars, and high brown and small pearl-bordered fritillary butterflies.

Noble Lords: Oh!

Baroness Farrington of Ribbleton: My Lords, there is also a very small niche market in composting bracken.

Baroness Byford: Follow that, my Lords. Bracken spread is actually a very serious problem and my noble friend rightly pointed out that it is rapidly getting worse. What assurance can the Minister give the House that those who advise the land managers will give the right advice? In the past they have said there has been overgrazing and now we face the risk of undergrazing. If there is any more undergrazing we shall just get a more severe spread of bracken.

Baroness Farrington of Ribbleton: My Lords, I have already referred to the fact that we are looking at undergrazing as a result of change in what is available. National parks authorities use agri-environment schemes or sites of special scientific interest management. They fund that and work with land owners to control it. Forest Enterprise also works in bracken management projects. Research is continuing into bracken management. There has been a 10-year project running with the University of Liverpool, and we have been using its results to directly help and advise those who need to control bracken. I do not think the noble Baroness need despair. As I have said, there is not clear evidence of a wide spread of bracken in all areas. It grows only below the frost line. The best answer to controlling the spread of bracken is to plant more trees, I am advised.

Public Servants and Government Policy

Lord Hamilton of Epsom: asked Her Majesty's Government:
	Whether they support the appearance of public servants in uniform to defend or promote government policy.

Baroness Scotland of Asthal: My Lords, chief constables, as public servants, have in the past argued both for and against government proposals on a wide range of policy matters, and I have no doubt that they will do so in the future where they feel it is appropriate. This is entirely consistent with their position as independent office-holders.

Lord Hamilton of Epsom: My Lords, I am grateful to the Minister for that Answer. Does she agree that it is wrong for the Chief of the General Staff to appear on television defending the ministerial decision to reorganise regiments in the British Army and that it is equally wrong for chief constables to lobby Members of Parliament in another place on periods of detention for terrorist subjects? Does that not indicate that the Government feel that public servants in uniform have credibility when their own Ministers have none?

Baroness Scotland of Asthal: My Lords, I do not agree with that last statement. Noble Lords will know that the Ministry of Defence encourages the Armed Forces to explain their role through the media, but on the basis that they are an integral part of the MoD and therefore speak for it rather than as individuals expressing their personal view. The noble Lord will also know that the police have recently spoken in favour of 90-day detention and against certain other government proposals. Therefore, their independence is clear.

Lord Renton: My Lords, does the Minister agree that senior police officers need to appear in uniform, that it is a great part of their authority and respectability and that if they decide to go without it, they will not receive the same amount of respect?

Baroness Scotland of Asthal: My Lords, I agree with the noble Lord that senior police officers have a great deal of authority, which is often depicted by their uniform. I for one would be sad if they did not feel they could wear it with a degree of pride.

Lord Dholakia: My Lords, the essential element of British policing is its independence. We have no objection to the Association of Chief Police Officers because it has an input in our political process. However, does the Minister agree that the independence is sacrificed if chief constables and other senior police officers are seen going around in chauffeur-driven cars trying to extend the detention period to 90 days?

Baroness Scotland of Asthal: My Lords, I do not agree with the comments made by the noble Lord, Lord Dholakia, if he seeks to suggest they do that not because they believe it but because they are pursuing some other end. In the past few days, we have seen how strongly chief constables can express their views. Sometimes they are in support of the Government and sometimes they are not. On pay and other issues, no one in this House would suggest that they are always pleased with what government do and they must be free to make their voices heard because they are independent office-holders. That is what they do—they take the rough with the smooth.

Lord Davies of Coity: My Lords, does my noble friend agree that if members of the police or the military, dressed in uniform, are interviewed by the aggressive media that we have in this country and are trying to explain government policy that has been determined by Ministers, there is a danger, unfortunately, that they will be held up as Aunt Sallys?

Baroness Scotland of Asthal: My Lords, the roles are different because the Armed Forces are an integral part of the MoD. The police are independent office-holders and it would be quite improper to put an improper restraint on the communication they wish to give in relation to their views. They are independently held and they are entitled to express them, whether they are in favour of government policy or against it. They must be free to wear their uniforms when they so choose.

Lord Forsyth of Drumlean: My Lords, will the Minister reassure the House that no Minister, special adviser or official acting on instructions from Ministers encouraged any chief constable to lobby Members of Parliament about the 90 days detention period?

Baroness Scotland of Asthal: My Lords, the noble Lord will know that when my right honourable friend the Home Secretary made his statements, which he did openly, he made it clear that it was entirely appropriate for chief constables to talk to MPs if they so wished in relation to the issues pertaining to their locality. If that is seen as encouragement, there it was.

Lord Winston: My Lords, does my noble friend agree that fundamentally there is no difference between this and, say, a senior hospital consultant speaking on behalf of the health service either in favour of or opposing the Government's policy on the NHS?

Baroness Scotland of Asthal: My Lords, I absolutely agree. Public servants have a duty to assist the public in terms of how they see provisions applying. I see no distinction.

The Earl of Onslow: My Lords, does not the noble Baroness understand that on the 90-day issue, the Government were asking chief constables to state a view and asking them to support the Government? Using uniformed personnel as paid mouthpieces of Her Majesty's Government is a bad idea. For such individuals to present their own views as a matter of course is a different thing altogether.

Baroness Scotland of Asthal: My Lords, I wholly disagree with the noble Earl. The position, which we have explained repeatedly, was that the Government listened to the police and took their advice. In acting on that advice, we proposed 90 days. It was not the Government who suggested that it was the ideal. We listened to the expert advice of the police and we agreed with them. The police are entitled to have their say.

Afghanistan: UK Deployments

Lord Astor of Hever: asked Her Majesty's Government:
	How their preconditions for the deployment of additional United Kingdom forces to Afghanistan relate to the agreed timetable for sending additional United Kingdom-led NATO forces to that country.

Baroness Crawley: My Lords, the possible deployment of additional UK forces to Afghanistan as part of the International Security Assistance Force expansion across southern Afghanistan is pending discussions with allies and a final government decision. The timetable for deploying the UK-led NATO Allied Rapid Reaction Corps is May 2006 for nine months. The two are not directly connected.

Lord Astor of Hever: My Lords, I am grateful to the noble Baroness for that reply. Will she confirm that our troops have started training for what will certainly be a difficult and dangerous operation? What progress has been made in discussions with our NATO allies to honour their undertakings of support with personnel and equipment?

Baroness Crawley: My Lords, the noble Lord will know that we have made no final decisions on deployment to southern Afghanistan next year. Instead, as my right honourable friend the Minister of State for the Armed Forces explained in his Statement on 14 November, we are simply making prudent, timely and common-sense preparations for a potential deployment. The noble Lord will know that those preparations will include unit training, procuring equipment enhancements and early logistics work so that we can respond quickly should NATO decide to expand to the south. In response to his second question I would reply that many allies are planning to join the UK in delivering ISAF expansion to southern Afghanistan.

Lord Garden: My Lords, does the noble Baroness share the concerns expressed last week by the International Crisis Group that NATO's effectiveness has been adversely affected,
	"by national caveats on functions and acceptance of risk"?
	Can the noble Baroness assure us that no commitment of UK forces will be made in the south without clear agreement on rules of engagement with allies and without sufficient effective numbers of supporting forces?

Baroness Crawley: My Lords, we are in continuous discussions with our NATO allies on the nature of any planned expansion to southern Afghanistan. That entails all the issues of engagement of which the noble Lord spoke. We believe that NATO is very capable of taking on a successful expansion in Afghanistan and organising that enlarged mission.

Lord Hamilton of Epsom: My Lords, following the intervention of the noble Lord, Lord Garden, and taking up his point about different countries not agreeing on how to pursue the way forward, does the Minister agree that the problem would be even greater if we ended up with a European army, which I think is what the noble Lord advocates?

Baroness Crawley: My Lords, that is slightly wide of the original Question. However—to be helpful—I do not think that we are talking about a European army.

Business

Lord Grocott: My Lords, I have a word to say about business later today. With the leave of House, a Statement on the local government finance settlement will be repeated by my noble friend Lady Andrews. The plan is that we will take the Statement at a convenient time after 6.30 pm as that will enable us to run directly into the dinner-break business immediately afterwards. The timing for those involved in the dinner-break business is therefore slightly problematic as no one can predict exactly how long the Statement and questions will take.

Council Tax (New Valuation Lists for England) Bill

Brought from the Commons; read a first time, and ordered to be printed.

Regulation of Financial Services (Land Transactions) Bill

Read a third time, and passed.

Harbours Bill [HL]

Read a third time, and passed, and sent to the Commons.

Terrorism Bill

Baroness Scotland of Asthal: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved accordingly, and, on Question, Motion agreed to.
	House in Committee accordingly.
	[The CHAIRMAN OF COMMITTEES in the Chair.]
	Clause 1 [Encouragement of terrorism]:

Lord Cameron of Lochbroom: moved Amendment No. 1:
	Page 1, line 5, leave out from "statement" to "as" in line 6 and insert "which members of the public to whom it is published could reasonably be expected to understand"

Lord Cameron of Lochbroom: The amendment is grouped with Amendments Nos. 11, 13, 16, 29, 33, 35 and 38 standing in my name, which are consequential on it. The amendments were suggested by the Law Society of Scotland and are probing.
	I start from the proposition that clarity in the definition of the offence of encouragement of terrorism created by Clause 1 is essential. In subsection (1), the definition of statement applies to the offence both as to,
	"direct and indirect encouragement or other inducement . . . to the commission, preparation or instigation of acts of terrorism or Convention offences",
	so far as that statement is likely to be understood by members of the public to whom it is published.
	It is to be noted that subsection (5) provides that for the purposes of the clause, two questions may arise that must be assessed in relation to a statement: first, how it is likely to be understood and, secondly,
	"what members of the public could reasonably be expected to infer from it".
	That second reference appears to be a reference back to a question of what members of the public could reasonably have been expected to infer from a statement in relation to the definition of indirect statements set out in subsection (4)(b); that is, of statements which glorify,
	"conduct that should be emulated by",
	those members of the public. From that, it would appear that for indirect statement, there is a subjective test which is related to that section of the public and which has to be applied. Albeit that in terms of subsection (6)(b), it is irrelevant,
	"whether any person is in fact encouraged . . . by the statement".
	On the other hand, for direct encouragement, the single test is whether it is likely to be so understood by members of the public to whom it is published. That suggests an objective test related to the statement itself, rather than to those members who could reasonably be expected to understand it as meaning encouragement.
	This amendment probes the nature of the tests to be applied by the courts in determining whether a statement will be understood as a direct or as an indirect encouragement of terrorism. It seeks to incorporate a test for both forms of statement which is based on a common and coherent standard; namely, one of reasonable expectation of how the statement would,
	"be understood by members of the public to whom it is published".
	There are consequential amendments to Clause 1, and to Clause 2 where it refers back to such statements—as, for instance, in subsections (3), (4), (5)(b) and (7). In this case, I suggest that there is a better way of going about providing a coherent and clear test for what a statement is—falling within the terms of this clause—than that which is presently in the Bill. I beg to move.

Lord Brabazon of Tara: I point out that if this amendment is agreed to, I will not be able to call Amendments Nos. 2 or 3.

Lord Kingsland: I rise to speak to Amendments Nos. 2, 7, 12, 18 and 34 in the same line. We share the concerns of the noble Lord, Lord Cameron of Lochbroom, about the matter to which he referred your Lordships. Our solution is slightly different to that of the noble Lord, but we are entirely with him in what he intends to achieve.
	In Clause 1, your Lordships are faced with two objective tests for a criminal offence. The first will be dealt with in a line of amendments a little later. It refers to the concept of objective recklessness—a concept which I hope that noble Lords will in time decide to expunge from the Bill. The second objective test is the one to which the noble Lord, Lord Cameron of Lochbroom, referred. It finds itself on page 1, line 5 of the Bill. The noble and learned Lord, Lord Cameron of Lochbroom—and I apologise for not adding "and learned" so far—has, after the word "statement", used the expression,
	"which members of the public to whom it is published could reasonably be expected to understand".
	Our approach has been simply to replace the expression "is likely to" with the expression "would". It now reads:
	"This section applies to a statement that is likely to be understood by members of the public to whom it is published".
	We would replace that with:
	"This section applies to a statement that would be understood by members of the public".
	We accept that the test should continue to be objective on that aspect of the offence. But in our submission the concept is too vague and introduces a standard of proof that is more suited to the civil law than the criminal law; that is, the standard of the balance of probabilities. It will always be difficult for someone, before he or she makes a statement, to guess what effect it is going to have. A balance of probabilities test is wholly inappropriate where one is talking about offences in relation to things said. In our submission, "would" is the appropriate answer to the problem posed by the Government's wording. A jury would clearly understand how to interpret the expression,
	"a statement that would be understood by members of the public".
	We believe that it would be absolutely clear to a jury what that meant and it would have no difficulty in fulfilling the task presented to it once the evidence in the trial was over.

Lord Goodhart: My name is attached to the amendments just spoken to by the noble Lord, Lord Kingsland. There is a great deal too much looseness in the drafting of the Bill and this point, which would make it clear that it must be an objective test—one that members of the public would understand—is the correct approach. We are therefore happy to support the proposal.

Lord Phillips of Sudbury: I rise briefly to speak in support of the amendments just referred to by my noble friend Lord Goodhart. On the face of it, putting the word "would" in place of the words, "is likely to be understood" may create a more difficult test for the prosecution to comply with, but I suggest that that might be a wise outcome. I would argue that any conviction under this part of the Bill must be clear not merely to the population at large, but particularly within the host community. I am thinking, for example, of the recent London bombings committed by British citizens. There is a hearts and minds issue in all these matters which would be better served by this clearer and slightly more stringent test than the one currently in the Bill.

Baroness Scotland of Asthal: I understand the concerns expressed by all noble Lords, but I do not think that their anxiety is merited. I shall explain why that is, and I hope to be able to signal some further changes which may give the noble Lords, Lord Kingsland and Lord Goodhart, along with others, what I hope will be a considerable degree of comfort. I am grateful to the noble and learned Lord, Lord Cameron of Lochbroom, for his amendment. Perhaps I may explain why I do not think the amendment is necessary, but say first that I understand that his proposal is probing in nature to enable me better to explain how we seek to deal with these matters.
	Amendments Nos. 1, 11, 13, 16, 29, 33, 35 and 38 would change the test for assessing whether a statement is captured by the offence in Clause 1. Currently, the test is whether a statement is likely to be understood by members of the public to whom it is published as encouraging terrorism, a point already made by all noble Lords. Under the amendments tabled by the noble and learned Lord, Lord Cameron, the test would be whether a statement could reasonably be expected to be understood by members of the public to whom it is published as encouraging terrorism. We do not believe, technically speaking, that this change would make a great deal of difference. But I do believe that, where possible, legislation should use simple rather than complicated language. I should like to give an example.
	On the basis of the arguments advanced on Second Reading, I would say that it is likely that we will not reach consensus on all of the measures of the Bill, although I still hope that we will. We could also reasonably be expected not to reach consensus on all of those measures. For the sake of simplicity, I would prefer the shorter expression, provided that it is as accurate as the longer expression; in this instance I believe that it is. I certainly appreciate the good intentions of the noble and learned Lord, Lord Cameron of Lochbroom, but I suggest that the construct that he puts forward is perhaps more legalistic than is necessary and that the current simplicity suffices.
	By contrast, Amendments Nos. 2, 7, 12, 14, 18 and 34, tabled by the noble Lords, Lord Kingsland, Lord Henley and Lord Goodhart, would very substantially change the test used to assess whether statements are captured by the offence in Clause 1. As I explained, currently the test is whether a statement is likely to be understood by the members of the public to whom it is published as encouraging terrorism. Under these amendments, the test would be whether a statement would be understood by the members of the public to whom it is published as encouraging terrorism. This is a significantly higher test and we do not believe that it would be appropriate for it to be adopted. The higher test, included in these amendments, would require a court to come to a definitive view not only about the person making the statement, or about the statement itself, but also about the audience to which the statement is delivered.
	In the current drafting it is not necessary to reach a definitive view about the audience. I suggest that it is not appropriate to expect the prosecution to prove definitively—which is what this amendment means they would have to do—that a given audience would behave or react in a certain way. After all, the audience is not the subject of the offence. These changes could make the clause unworkable, enabling the defence to argue that even if it was accepted that a statement was likely to be understood as encouraging terrorism, it would not actually be so understood. The offence should, we respectfully suggest, target the individual making the statement and be concerned with the statement itself. The audience is relevant, obviously, but it should not be as directly involved in the offence as would be the case under these amendments. For those reasons I would urge noble Lords not to press the amendments, and I hope that this has been a helpful indication of why they are not necessary. I believe that the existing safeguards are quite sufficient.
	Finally, I would like to refer briefly to comments I intend to make shortly when we turn to the amendments concerned with intent and recklessness. I would like to signal at this early stage the Government's intention to make significant changes in these respects. Although I do not want to go into the detail now, I can assure your Lordships that in my view the concerns that have led to the amendments before us now—particularly those relating to the substitution of the "would" test for the "likely" test—are unnecessary in the context of the offence. I hope that that eventually becomes apparent. I therefore urge the noble Lords who have tabled these amendments not to press them. We will have an opportunity later to discuss whether the subjective or objective test is to be preferred. I am happy to indicate that the Government are currently minded to adopt the subjective as opposed to the objective test.

Baroness Carnegy of Lour: These are very much lawyers' matters and I am no lawyer. I think I understood what the noble Baroness was saying about the amendments tabled by my noble friend on the Front Bench. Referring to Amendment No. 1, tabled by the noble and learned Lord, Lord Cameron of Lochbroom, in response to a request from the Law Society of Scotland, I understood the noble Baroness to say that she thought it would not make a great deal of difference to accept Amendment No. 1, but she thought it somewhat "legalistic." I wonder whether, when the noble and learned Lord, Lord Cameron of Lochbroom, replies, he could tell us whether he feels, as a very distinguished retired judge of the High Court in Scotland, that his wording would make it very much easier to reach a judgment than that suggested by the Government? The point of his amendment is that it would make it easier for a court to decide the issue. I hope that I am not speaking out of order, but it seems an important point.

The Earl of Onslow: If someone makes a statement that has no effect on the audience, it does not matter if they make the statement. The only thing the Government are worried about is the effect that the statement encouraging terrorism, or whatever it may be, will have on the audience. That is what matters. If a man is ranting but everyone thinks he is being completely idiotic, he is doing no harm. He is doing harm only if he has an effect on the audience. Surely that is the point that my noble friends and the noble Lords on the Liberal Democrat Front Bench are trying to get over. It is the effect on the audience which is important, not what the man says.

Lord Morris of Aberavon: I follow the Minister's argument and I am in some sympathy with it. But can she deal precisely with the issue of the burden of proof which has been raised by the noble Lord, Lord Kingsland? "More likely than not" is a phrase that we do not particularly like in criminal law. Added to that, is there a precedent for this kind of statutory implementation?

Lord Ahmed: Are statements from religious scripture excluded? For example, an imam might be speaking in relation to oppressed people and quote from the Koran that, "It is compulsory for you to fight to rescue those oppressed people". Would such statements amount to encouragement when he is making reference to the Koran?

Lord Lucas: The noble Baroness wants us to postpone argument on these amendments on the basis of unspecified promises on some future unspecified amendment. At the very least I hope she will tell us under which group of amendments we will discuss intent so that if she wants me to hold my horses, I can. As the noble Lord, Lord Ahmed, said, every single one of us in the course of our lives, at some time or another, has glorified terrorism. I cannot believe that when the noble Baroness and her colleague on the Front Bench were young they did not support some of the then terrorist movements which were fashionable. For myself, I supported Robin Hood and Hereward the Wake. It is a part of wishing people to be free, as the noble Lord, Lord Ahmed, said, that one is prepared to contemplate for them measures which go beyond the ordinary. We must be careful of exactly who we are criminalising. I do not feel entirely comfortable with having our discussion cut short now without really being told why.

Lord Eatwell: My Lords, in her remarks the Minister made a heavy hint that she was going to consider later the concept of intent. It might be helpful if she could let us know whether that applies only to Clause 1 or also to Clause 2.

Lord Thomas of Gresford: I congratulate the Government on thinking again on the definition of "recklessness". I look forward with great eagerness to the Minister's response on this at a later stage.
	I follow the noble and learned Lord, Lord Morris of Aberavon, in his question. The purpose of using the word "would" instead of "it is likely to" is to introduce more certainty into the offence. The answer given by the Minister is along the lines of, "It is easier to convict someone if we say 'it is likely to'". The criminal law is not about whether it is easier or harder to convict: it is about defining clearly an offence. The proof of that offence beyond reasonable doubt is then a matter for the prosecution to consider in due course. But we cannot make bad law by making criminal law simply on the basis that a conviction is more likely than not. I hope that we are not going to hear any further defences of the Government's drafting of these crimes as this Committee proceeds.

Lord Judd: I should put on record at this stage—because no doubt it will come up repeatedly during our deliberations—that I am a member of the Joint Committee on Human Rights and our report has come out only today. These issues are ones about which we thought a great deal in drafting the report. The first point I would like to make is that I am very glad indeed to hear my noble friend the Minister say that the issue of intent is going to be revisited in our deliberations. We see this as crucial. It is central to the way in which law has traditionally operated. Distinguishing the person's intention in what they were doing and saying from how others interpreted what they were doing and saying is a very important issue.
	I want unashamedly to make one point at this stage of our deliberations. I take second place to no one in my concern about the gravity of the issues with which we are confronted. It would be lamentable, to say the very least, if somebody who was guilty of the most heinous crimes against innocent people were to go free because of inadequacies in the drafting of law. However, in the midst of the dangers that confront us and the gravity of the situation, we are about defending our society and what makes it worth living in. The rights of the accused are crucially important. We must not, therefore, simply concentrate in our deliberations on what would make for a more effective prosecution. We also have honestly to state that the law must be quite clear in its approach so that the interests and rights of the accused are being properly considered throughout its administration. What we are discussing here is central to that.
	The Committee has not yet dealt with this point about "would", but it is an interesting one. It is central to the issue of having as much clarity and certainty as is possible to achieve not only to ensure effective prosecution, on the one hand, but to ensure that the rights and freedom of the accused are not being ridden over roughly, on the other.

Lord Waddington: I am wondering whether the Government's concern about the amendment moved from these Benches may not arise from the fact that under the existing wording of the clause, a jury would be asked to exercise its common sense as to whether the words used would be likely to encourage terrorism. But if the words suggested in the amendment moved by my noble and learned friend were accepted, prosecution could very easily be frustrated by the defence, who could call a succession of witnesses from the audience who might say that whatever the common sense of the matter might be, they certainly were not encouraged to commit an offence of terrorism. I am therefore rather worried about the amendment moved from these Benches.

Lord Lyell of Markyate: The complexity of this matter must already be very clear. It is certainly clear to me. I do not pretend to have the definitive answer except that, unlike my noble friend Lord Waddington, I am inclined to support the amendment tabled by my noble friend Lord Kingsland and supported by the noble and learned Lord, Lord Morris of Aberavon. Clarity in the criminal law is extraordinarily important.
	I have been affected by the letter which all of us will have received from—and maybe we shall hear more of this during the debate; and I find it difficult to express the words correctly—Hizb ut-Tahrir Britain. It points out the very complex world in which we are seeking to enter with the concept of glorification of terrorism. Clause 1(1) applies to a statement that is likely to or would be understood,
	"by members of the public to whom it is published as a direct or indirect encouragement or other inducement to them to the commission . . . of terrorism or . . . offences".
	Quite a lot of the members of the public to whom it is published will understand one thing and some, who are rather more inclined towards terrorism, will understand another, which constitutes the mischief that the clause is seeking to achieve. Hizb ut-Tahrir makes the quite compelling point that much of the language that some people see as encouraging terrorism is the normal, everyday language used by those who deplore what is happening in Palestine or deplore the Iraq war. Whatever views one may take on those matters, in a free society it is very possible—and ought to be possible—to express those views. I see real danger here.
	We need as much clarity as possible about what precisely is the offence. For that reason, I support "would" rather than "is likely to", but we shall have to continue to look at all the wording.

Lord Kingsland: The noble and learned Lord, Lord Cameron of Lochbroom, introduced this group of amendments and it is for him to terminate this part of the proceedings. Perhaps, however, I could intervene once more on the subject of my amendments to say two things.
	First, the intention of the amendment, as was explained very clearly by the noble Lord, Lord Thomas of Gresford, is to achieve certainty. It may also make the tests differ, but that is not the fundamental reason for introducing the amendment. It certainly does not raise the test as high as the "beyond reasonable doubt" test because it would be inappropriate to look at this part of the offence in those terms. The "beyond reasonable doubt" test is relevant to intention, which is dealt with in Clause 1(2) and (3).
	All we are seeking to achieve is certainty in the law. It would be most unfortunate if, because of a lack of certainty, the Government were faced with what might ultimately prove to be a successful litigation in the High Court on the grounds that the clause breached Article 7 of the convention on human rights. Certainty is extremely important.
	My second point was raised by the Minister in her response to the noble and learned Lord, Lord Cameron of Lochbroom. Despite the insertion of the word "would", the test in Clause 1(1) remains an objective test, but with greater certainty. If we had sought to remove the expression "likely to be", and simply left what remained to state, "This section applies to a statement that is understood by members of the public to whom it is published as a direct or indirect encouragement or other inducement", then the many problems which were raised by my noble friend Lord Waddington would indeed face the court. But that is not so with our amendment.

Lord Elton: I hope that the noble and learned Lord, Lord Cameron, will not think of terminating this stage of the proceedings, as his movement a moment ago suggested, before we have heard again from the Minister. She has a number of questions to answer; some of them are not as succinct as those of the noble Lord, Lord Eatwell, but all of them deserve an answer before the debate comes to an end.
	Secondly, along with my noble friend Lord Lucas, I am a bit anxious about the proposal to leave the field when so little is undecided. I hope that the noble Baroness and the rest of the Committee will be mindful of the fact that a promise as imprecise as the one which has been given can, when honoured, reveal quite unexpected dilemmas. I hope that the noble Baroness and the Committee will remember that if that happens, a Report stage debate is not adequate for resolving such difficulties. It must be implicit, in an offer as vague as this, that there may be an opportunity to reconvene into Committee on this clause.

Baroness Scotland of Asthal: In response to the suggestion of the noble Lord, Lord Elton, I say that I do not think that there will be any need to reconvene into Committee on Report because I hope that we will be able to go through the Bill very fully now. I am more than happy to explain at this stage the Government's current thinking, to enable noble Lords to feel a greater degree of ease as we pass from this amendment to those that are to come. I will seek to answer directly some of the questions that were raised.
	I can tell the noble and learned Lord, Lord Morris of Aberavon, that the burden of proving the effect of the statement would remain with the prosecution. It would be the normal burden of proof in criminal cases of beyond reasonable doubt. I said that inserting "would" would become less problematic because, if we were to adopt the suggestion of noble Lords opposite in relation to the subjective test, that issue would become more clear.
	The noble Lord, Lord Ahmed, asked a question about the Qur'an. We are not seeking to criminalise legitimate use of religious text. As noble Lords know, the offence of encouragement or glorification can be committed only if the statement is made with the intent of inciting others to commit terrorist acts or, once the Bill has been amended, if the person knows that that is the likely result. Mere glorification is not an offence.
	I thank the noble Lord, Lord Thomas of Gresford, for his encouragement. This is not going to be bad law. I think that even he will be pleased by the indications that I am about to give.
	As my noble friend Lord Eatwell and the noble Lord, Lord Lucas, raised this matter, and if it is convenient to the Committee, I shall deal with the way in which we propose to look at Clauses 1, 2 and 6. Much of the debate at Second Reading and today has focused on the possibility that Clauses 1, 2 and 6 might criminalise activity which we all regard as acceptable. My noble friend Lord Eatwell, for example, argued at Second Reading that Clause 2 might capture some activities which certain libraries are bound to perform. Other noble Lords argued that these clauses would capture academic work, including those who teach history and touch on Islamic extremism. For those reasons, we have thought very carefully about where we go from here.
	We disagreed that the Bill as currently structured criminalises these activities. We are satisfied that it does not. Where those activities are innocent and unlikely to promote terrorism, it will not cause difficulty. However, in view of the concern which has been expressed here and in another place, the Government have given these matters further consideration. We have tried to find ways of giving comfort in relation to them.
	The question of intent and recklessness in Clause 1 has caused the most anxiety. There is clearly no doubt that intent should be part of the offence. Those who intend to encourage terrorism should find that their activities fall within the parameters of this offence. There is, however, some disagreement over the recklessness element. The question is whether the recklessness test should be objective or subjective. An objective test involves establishing whether the defendant could not reasonably have failed to know what the effect of his statement would be. A subjective test would involve establishing that that defendant in fact knew what the effect of his statement would be.
	We are satisfied that if a person could not reasonably have failed to know what the effect of his statement would be, he should not be able to escape punishment simply by asserting that he did not actually know what the effect would be. We in the Government, however, have listened to the concerns expressed here and in another place, and I can confirm that the Government will accept a subjective recklessness test in Clause 1, which both Her Majesty's loyal Opposition and the Liberal Democrats voted for in another place. When we reach Amendment No. 9, tabled by the noble Lords, Lord Kingsland, Lord Henley and Lord Goodhart, and the noble and learned Lord, Lord Cameron of Lochbroom, we in the Government will support it. Similar issues arise elsewhere.
	This change will mean that the prosecution will have to show not that the defendant could not reasonably have failed to know what the effect of his statement would be, but that he in fact knew what the effect would be. I am satisfied that this change should provide the comfort sought by noble Lords who have had concerns about this offence. The offence will not be committed unless the defendant either intended to encourage terrorism or knew his statement would encourage terrorism. I do not believe that people should be allowed to encourage terrorism intentionally, or to make statements that encourage terrorism when they know what the effect will be.
	I also signal that the Government will seek to make a further change to Clause 1. At present, there is a defence in Clause 1(7). The defence has three limbs: first, that the statement was published in the course of providing a service electronically; secondly, that the statement did not express the views of the person publishing it; and, thirdly, that it was clear in all the circumstances that the statement did not express the views of the person publishing it.
	The Government now propose to extend this defence to everyone, not just those who provide a service electronically. This amendment will extend the scope of the defence considerably. The defence will be available to those who make a statement available to the public in the course of, for example, a news broadcast, if they could show that they did not endorse the statement and the circumstances surrounding the broadcast made that clear.
	Likewise, academics who passed statements on to their students or who took up arguments that could be construed as encouraging terrorism, but only for the purposes of educating their students, could not be convicted, provided that they could show they did not endorse the statement and it was clear in all the circumstances that they did not. We intend to move an amendment to that effect on Report. Together with the move to subjective recklessness, this change would mean—

Lord Goodhart: This is a significant concession, but are the Government prepared to take it one step further and make the burden of proof on the defendant in these cases an evidential burden of proof?

Baroness Scotland of Asthal: We believe that the burden lies with the prosecution—appropriately, under the new subjective test—and that no further changes are necessary at the moment. The standard is beyond reasonable doubt. It is relevant to all elements of the offence in Clause 1. The prosecution must prove all those elements of the offence beyond reasonable doubt and that it is likely to be the effect of the statement.

Lord Goodhart: I am sorry to come back on that, but I understand that as a general rule when a specific defence is provided, as it is in subsection (7), the burden is on the defendant to prove his defence on the balance of probabilities. However, there are occasions—under the Terrorism Act 2000, for example—where that burden is reduced to an evidential burden; that is, as long as evidence is produced sufficient to raise it as an issue, it then becomes a burden on the prosecution to disprove that defence beyond a reasonable doubt.

Baroness Scotland of Asthal: No, I do not think that there is any intention for us to change this in the way that the noble Lord, Lord Goodhart, indicated. These are real changes in relation to the offence. The Government have listened very carefully. I hope that Committee Members will feel that we have gone a long way to meet the concerns that were raised in the other place, which we have decided to accept. I am sure that the noble Lord, Lord Goodhart, will be delighted that we have done so.

The Earl of Onslow: This is a very important point that I have only just understood. I get the impression from the Minister, who always tries to help the House, that the ball whizzed past her off stump and she did not know where it was going. She was not quite sure what the answer was. Nobody blames her for not being sure, but would it not be better to have a tiny think about this and come back later rather than giving an answer on the hoof? From this side, one could see the Minister's face and she was genuinely struggling. I say this in all sympathy.

Lord Ackner: I support what has just been said. Unless there is a suggestion that the burden could be treated as evidential, a sizeable burden has been placed on the defence. It would be quite contrary in cases of this kind for the defence to shoulder entirely new burdens. The evidential approach gets over that altogether. There must be some material, but once there is some material, the defence awaits the proof by the prosecution of the issue itself.

Lord Phillips of Sudbury: To add to what the noble and learned Lord, Lord Ackner, said, in the light of the significant concession that the Minister has just announced to the Committee, is there any substance left in the recklessness part of this at all if there can be subjective restlessness?

Lord Lloyd of Berwick: I am concerned that the Minister should explain this a little further. As I understand it, the concession does not go so far as removing recklessness altogether, which is the amendment to which the noble Lord, Lord Goodhart, and I put our names. If that is the concession, I am going home, but I imagine that it is not.

Baroness Williams of Crosby: Would the extension of the defence to which the Minister referred in Clause 1—extending the provision made for Internet service providers—also apply in the case of dissemination?

Baroness Scotland of Asthal: I will certainly think about the noble Baroness's question, although I do not think that it could. The noble and learned Lord, Lord Lloyd, is absolutely right. We are not removing recklessness. We are saying that the test is subjective and not objective. The Committee should accept that we have moved a long way, not least because it makes this offence considerably more difficult to prosecute, and we have accepted that. The question is whether it makes it impossible to prosecute. Noble Lords should be aware of the argument that the concession would make it almost impossible for there to be a prosecution, and we had to think very carefully as to whether that was the case. We believe that it would be possible—I emphasise "possible"—to prosecute using the subjective test, but no one should be left in any doubt as to the difficulties of satisfying that test. It would be difficult even as it is currently structured.
	Whether the burden of proof should be placed on the defendant is a difficult issue. Placing the burden on the defendant must be assessed to ensure that it does not breach, for example, Article 6 of the ECHR, which guarantees the right to a fair trial. The Government's view is that it is proper and fair for the defendant to bear the burden of proof in those circumstances. Placing a burden on the defence is fair and reasonable for a number of reasons. First, endorsement is not an element of either offence; therefore, the defences are aimed at the exception to the offence. Secondly, whether or not a person endorsed a statement or was expressing his view is within his particular knowledge. Whether that person examined a publication or intended it to be useful to terrorists is also within his particular knowledge. Finally, the defendant is in the best position to bring forward evidence of how he runs his electronic service and to show that the electronic material on it did not have his endorsement.
	The reason why I said that I would consider the point raised by the noble Lord, Lord Goodhart, was to see whether there was anything further that we could do. Of course we will look at this matter, but I should make it clear that I do not believe, having moved such a considerable way forward, that any further movement is likely and it would be wrong of me to leave that impression in your Lordships' minds. This move is very considerable indeed.

Lord Thomas of Gresford: We accept that the Minister has moved a long way and we are grateful to her for the way in which she described it at the beginning of our deliberations. The problem is that we are not sure how far she has moved and I would like to focus again on the issue that has been raised.
	If I lecture a group of students and make a speech setting out the views of a terrorist, I accept, in terms of subsection (1), that I have made a statement,
	"that is likely to be understood . . . as . . . indirect encouragement . . . to the commission . . . of acts of terrorism".
	However, my defence under subsection (7) is that that is not my view and I am not endorsing the statement. The issue on which we require clarification is whether I have to prove, on a balance of probabilities, that I do not hold or endorse those views, or whether it is for the prosecution to establish beyond reasonable doubt that those are my views and that I endorse the statement that I read out. That is the precise issue and, although it is not for me to make suggestions to the Minister, it requires her considerable thought. As my noble friend said, the matter arose in the Terrorism Act 2000, and was the subject of considerable discussion. It was raised by my noble friend Lord Goodhart, and, as a result of his intervention at that time, the burden of proof became an evidential burden on the defence and no more than that. That is the issue on which we need clarification.

Lord Cameron of Lochbroom: When I moved the amendment I think I said that it was a probing amendment. I realise now that it was a lance that was being employed, and that I have been offered, in what the Minister very generously said in response, material which goes far beyond what I intended. I was concerned not with intent, in the sense of the person accused, but with the description of a statement which is to be the subject of an offence. It has to be described adequately, in terms from which a jury would understand the kind of statement covered by this offence. Issues of intent of the person uttering the statement or being responsible for publishing it come at a later point. I am grateful for what has been said by all noble Lords on this matter. I would like to go back and consider again what the Minister has said. For the moment, I am not entirely happy with her response.
	The noble Baroness, Lady Carnegy of Lour, asked me whether, as a judge, I would be happy trying to describe to the jury where they are going. In subsection (1), the offence has to be a statement that is,
	"likely to be understood by members of the public to whom it is published".
	It can be looked at first of all as a direct encouragement or other inducement. On the other hand, it can also be an indirect encouragement or inducement. We then have to go to subsection (4) to determine how that is to be looked at, particularly where it includes,
	"every statement which glorifies the commission",
	and so on, and is—this is the point I was making in opening—
	"a statement from which those members of the public could reasonably be expected to infer".
	So it goes on. I raise the issue in subsection (5) about the questions that could arise.
	I will look again very carefully at the Minister's response, but I do not think that she quite covered the point I was trying to raise. My point is that, if you have a test of a statement which members of the public could reasonably be expected to infer was to glorify conduct which should be emulated by them, why cannot that test also properly be brought back into the description of a statement which directly invites them to take part in,
	"the commission, preparation or instigation of acts"?
	Obviously, I did not put the matter properly before your Lordships in opening. For that I apologise. But I would like to look at the matter again in the light of what the Minister has said and perhaps come back to it at a later stage. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 2 not moved.]

Lord Goodhart: moved Amendment No. 3:
	Page 1, line 5, leave out "members of the public" and insert "persons"

Lord Goodhart: This is a brief probing amendment. Why is the statement giving rise to an offence under Clause 1 a statement to "members of the public"? What is meant in this context by "the public"?
	It may well be that some small terrorist groups may make no efforts to recruit members of the public. I would think, for example, that that was probably true, although I cannot be certain, of the Baader-Meinhof gang, which was a very small terrorist group operating in Germany. That would no doubt be because some groups of this kind find that indoctrinating people who are already known to members of the group is a more effective method of recruitment than trying to indoctrinate unidentified members of the public. I wonder, therefore, why we are not targeting indoctrination rather than just public encouragement of terrorism? I beg to move.

Baroness Scotland of Asthal: The whole purpose of this part of the Bill is to enable us to ratify the Council of Europe Convention on the Prevention of Terrorism. In order to allow us to ratify the convention in this respect, we can create an offence that is broader than, or has the same scope as, the offence envisaged in Article 5 of the convention—as the noble Lord knows—but not one that is narrower. In considering whether our offence should have the same scope as that offence, we have taken into account the particular mischief which we feel we need to tackle, as well as existing UK law.
	In fact, if we were to adopt the construction suggested by the noble Lord—"persons"—it would be, if I may say so, more illiberal than our current structure. Amendments Nos. 3 and 15 would replace references to "members of the public" with references to "persons". The Committee will know that the offence envisaged under Article 5 of the convention is concerned with making messages available to the public. The Government feel it is appropriate to have the same scope as that offence. It is not appropriate for this offence to target private communications.
	Although our decision to target only public statements may be inherent in the notion of "publishing" which is included in the current draft of Clause 1, we see no reason why the clause should not make it explicit that we are describing public communications by referring to members of the public as well. Given that the offence is not directed at private conversations, I hope that the noble Lord, Lord Goodhart, will accept the slightly tighter wording. I know that he would hate this provision to be seen as more illiberal than it needed to be. I must confess, I could not believe this draft when I first saw it, given where it comes from. I hope, with my explanation, the noble Lord will be content that the Government are trying to be liberal—with a little 'l'—on this, and will join with us in our liberality.

Lord Elton: Will the Minister spare a moment to resolve a question I have often asked myself? What are the circumstances under which I can claim not to be a member of the public?

Baroness Scotland of Asthal: I cannot think of one, so I will get back to the noble Lord if I can.

Lord Thomas of Gresford: Does "members of the public" include, for example, students within a small seminar? Suppose a tutor is talking to his pupils—are they members of the public? If he is giving a lecture which is open only to members of a particular university, are they members of the public? It is just one of those vague expressions that runs through Clause 1 and makes it extremely difficult to understand the scope of the offence.

Baroness Scotland of Asthal: The whole point, as I have tried to make clear—including in relation to "members of the public"—is to enable us to ratify the convention when we come to implement the provisions, and make it clear that we are not seeking to catch private communications; that is reinforced by referring to "members of the public" as opposed to "persons". If we leave it as "persons", it could conceivably be suggested that we are seeking to catch private conversations and communications, which are not included. "Public" is, of course, defined at Clause 20(3).

The Earl of Onslow: On this occasion, I suppose that I can be accused of arguing from a point of view that differs from that which I normally adopt. Is there a danger that a susceptible individual can be got hold of and, by glorification, be bullied into doing whatever misbehaviour we are trying to discourage? That one person could on many occasions be much more susceptible than a group. It could be argued that you are missing the real danger by focusing on people who are just writing cartoons or general articles in a newspaper.

Baroness Scotland of Asthal: A person could, of course, be a member of the public who could be affected thereby. The whole purpose of having the definition in Clause 20(3), which deals with references to the public, is to give a certain degree of clarity to this. Clause 20(3)(a) provides that references to the public,
	"are references to the public of any part of the United Kingdom or of a country or territory".
	However, Paragraph (b) states,
	"except in section 9(4), also include references to a meeting or other group of persons which is open to the public (whether unconditionally or on the making of a payment or the satisfaction of other conditions)".
	Subsection (3)(b) gives the clarity that I hope is needed.

Lord Goodhart: As I said, this was intended as a probing amendment. We have had a useful short debate which has to some extent clarified the matter. As I understand it, the position is that a meeting or a seminar, to use the expression mentioned by my noble friend Lord Thomas of Gresford would not be regarded as open to the public. Clause 6 deals with references to persons rather than to the public. There are obviously questions that may still arise, such as whether something that was open to any member of a particular religion could be regarded as open to the public. I do not think it is necessary to take this matter further. No doubt this may from time to time concern the courts in the future, if and when this Bill is enacted. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Goodhart: moved Amendment No. 4:
	Page 1, line 6, leave out "a direct or indirect" and insert "an"

Lord Goodhart: This group of amendments removes the words "direct or indirect" in relation to encouragement. In addition to this amendment, I wish to speak also to Amendments Nos. 26, 28, 31 and 63.
	If Amendment No. 4 were agreed to, the Bill would refer only to encouragement, without splitting encouragement into direct and indirect forms. Why is a reference to indirect encouragement necessary? The Bill defines one type of indirect encouragement of terrorism in Clause 1(4). Whether Clause 1(4) should be retained at all is a subject for debate in a different group of amendments and I will not discuss that now. Clause 1(4) is not an exclusive definition of indirect encouragement, it is what I might call an "includes definition" and not a "means definition". The question for this group of amendments is: what else—if anything—do the Government have in mind as being indirect encouragement of terrorism? The concept of "indirect" encouragement of terrorism is frankly extremely vague. It is most unsatisfactory if people can drift into a criminal offence with statements which do not openly, or by necessary implication, encourage terrorism. That is particularly important when freedom of speech is an issue because people should have clear guidance on what they can and cannot say. Subsection (4) gives some guidance for one category of indirect encouragement—the so-called glorification—but not for indirect encouragement as a whole. Will the Minister therefore explain what indirect encouragement may involve? Why is it necessary to have separate categories of direct and indirect encouragement instead of simply a single category of encouragement?
	I note and accept the views of the Joint Committee on Human Rights that indirect encouragement of terrorism can be a legitimate offence. However, the Joint Committee also made it clear that any such offence must be narrowly defined and at present it plainly is not. Indeed, it is not defined at all. If the Government want to make indirect encouragement an offence, they should come back with a clear, complete and narrow definition of it. I beg to move.

Baroness Williams of Crosby: I strongly support my noble friend Lord Goodhart in this amendment, to which I have added my name because of the wider considerations raised in part by the speech of the noble Lord, Lord Judd, and others. The Association of University Teachers, in making representations on the Bill, wisely referred to the "chilling effect". The chilling effect of legislation that can bite on freedom of speech and inquiry can be wide and go beyond what may be intended by the Government. Having lived for some two years in the United States during the period of McCarthyism, I am well aware of what is meant by a chilling effect. It is that people are frightened of what may be the consequences and the wide interpretation of what they do and they then avoid doing it even though their obligation as a journalist, university teacher or librarian might otherwise oblige them to do it. The danger of a vague definition of what is meant by "encouragement"—the word "indirect" turns it from being specific to vague—is that the chilling effect becomes very widespread.
	In the particular case of Clause 2, where we are looking at the role of people in libraries and universities—no doubt we shall debate the matter at greater length—the fact that the Minister was not able to say immediately whether the defence might be extended to dissemination troubled me deeply. The phrase "indirect encouragement" in the hands of someone in a responsible position—an academic or a librarian—could mean the careful avoiding of anything which could be considered to encourage terrorism. Let me give an extreme example. Supposing that I applaud a speech favouring terrorism given by some proselytiser in a public setting, could my applause be regarded as indirect encouragement to terrorism? Could it be that if I give my class in literature William Butler Yeats's "Easter Rising" to read, that might be interpreted as an encouragement of terrorism? Historically in a sense it was—certainly the glorification of terrorism is rung in the verses of that great poem.
	If we are ably to protect the limit, given the legitimate issues in trying to protect ourselves against terrorism, we need a much clearer definition of "encouragement" than is in the Bill. By leaving out the word "indirect" we leave it to the courts to determine whether there has been encouragement. Leaving the word in tends to make the interpretation considerably wider.
	On Second Reading, I said that the First Amendment has made it impossible for legislation of this kind containing these sorts of words to be used.
	I believe that it is extremely important in our much looser and unconstitutional—that is, without having a written constitution—setting that we should consider how we define what is meant by "encouragement of terrorism" in such a way that will limit to the greatest conceivable extent the impact that it could have on freedom of discussion, debate and scholarship within our country.

The Earl of Onslow: I see another difficulty. Let us assume that a student wishes to discuss or to write an historical essay on the Afghan-Russian war of whenever it was—1970-odd to 1985. Sandy Gall wrote strongly in favour of the Mujaheddin who were resisting the Russians. Almost certainly the Russians referred to those gentlemen as terrorists. Had we been Russians, we would have done so, too. We regard that sort of behaviour as terrorism. The Americans provided them with large, substantive gifts of arms solely to make their terrorism much more effective, which was part of the policy.
	We have to be careful. Would it be an offence of "indirect encouragement" were a librarian to recommend Sandy Gall's articles on the Afghan war? What about library-held copies of some of the United States' newspapers with their encouragement of the Irish uprisings at various times—not least the 1916 rebellion—and up to and including the present troubles, from which, thank goodness, it looks as if we are about to be spared? It is a difficult question. I seem to remember that there were good terrorists called the Macquis, who should be encouraged and bad terrorists, called the IRA, who should definitely not be encouraged. The Bill seems to catch them all with all its dangers and illogicalities. That is a perfect example, and this is the first time we have had in Committee to consider the point.

Lord Ahmed: I support the amendment tabled by the noble Lord, Lord Goodhart. I am deeply worried about the definition of a terrorist, or of encouraging terrorism, which has expanded to other parts of the world where there are legitimate struggles of the right of self-determination and legitimate struggles against oppression; where there are abuses of human rights and where there is rape and torture. People like me who come from Kashmir know that there are 700,000 Indian soldiers there. International organisations, such as Amnesty International, Physicians for Human Rights, Asia Watch, and the State Department, and even the Foreign Office know well that there have been many reports of fake encounters and abuses of human rights, such as rape and torture.
	We need clarification about how far we can go in terms of freedom of speech and legitimate struggles that we have been supporting. After all, our tradition is that we have supported those people who are oppressed. There is absolutely no suggestion that we want to support any terrorist who wants to kill innocent people, but there are people facing armies of oppression, and we need a very clear definition.

Lord Lester of Herne Hill: I do not want to add to the excellent speeches that we have just heard, with all of which I agree in their entirety. I want to make one or two further points wearing my hat as a member of the Joint Committee on Human Rights, whose report has already been mentioned today, and describe how I see the issue as someone who trades in human rights law in the context of free speech in my professional capacity.
	We are here dealing with speech crimes, are we not? They are speech crimes that criminalise the expression of political ideas that cause grave offence and worse, just as we were dealing with speech crimes when we debated provisions in the religious hate Bill on stirring up religious hatred. It is very important—I have said this to friends within the Muslim Council of Britain, for example—to have a completely consistent approach to free expression, whether it is in the context of speech crime in the Bill or under the incitement to religious hatred Bill or any other Bill. What do they have in common? First, there is a serious impact on the right of free expression. Secondly, as I said, they are in the context of political speech. Thirdly, under the principles of the United States Constitution First Amendment or the European Convention on Human Rights, it is clear that two main vices must be avoided in legislation of this kind.
	The first vice is vagueness. Crimes of that kind must be tailored so that the citizen is given fair warning in advance of whether their contact will give rise to a serious criminal offence. The vice of vagueness is accompanied by the vice of over-breadth. A crime must not be defined more broadly than is necessary to meet the legitimate aims of the state. In my view, and that of the Joint Committee on Human Rights, the crime of glorifying terrorism fails to satisfy either of those tests. It is too vague and lacks proportionality.
	The Minister may say in her reply, as was said in the context of religious hate speech, that the Human Rights Act comes to the rescue because it states that all legislation, old and new, must be read and give effect compatibly with the convention rights, including the right to free speech. That is true, but the reason why that is no solution to the concern being expressed across the House is that Article 10 of the European convention is a qualifying right, not an absolute right. It has very broad exceptions and the citizen cannot tell by reading Article 10.1 or Article 10.2 whether given conduct will or will not be protected by the convention. So the vices of vagueness and over-breadth are not solved merely by the incantation of the Human Rights Act. It is therefore vital for the House to make quite sure that when those offences are defined, whether in this Bill or the other one, they are not too vague and not over-broad. We have work to do to accomplish those objectives.

Lord Judd: Reference has been made to the work of the Joint Committee on Human Rights. The evidence that we received is published, and it is beyond doubt that one of the most controversial issues in that evidence was the business of the definition of terrorism. It is worth taking seriously the amount of feeling that existed among some of the very articulate witnesses who came before us and put their cases extremely well.
	Surely it is because of the difficulties and uncertainties which we are discussing now in Clause 1 that the Home Secretary has invited the noble Lord, Lord Carlile, to review the definition of terrorism. Therefore, somebody looking at our situation from the moon might say that we were rather ahead of events. On the one hand, we have recognised that there is a need to review the definition of terrorism—and the Government have asked someone to produce a report doing that—and on the other, we are introducing legislation to deal with people who, directly or indirectly, advocate terrorism. Forgive me, but in all seriousness that is really rather bizarre. However, as the situation operates it makes it all the more important to have the certainties for which the Joint Committee has argued.
	If I may, I will switch from talking about the Joint Committee to talking from personal experience for a moment. I apologise for repeating something to which I have referred before, but it made a profound impression upon me. For three and a half years, I was the rapporteur to the Council of Europe on the conflict in Chechnya. I visited that country nine times during those years. I saw the consequences of the indiscriminate and ruthless bombardment of Grozny and elsewhere. I constantly heard from and met people who had suffered the disappearance of relatives, the torture of family, the road blocks and all the brutality and insensitivity that marked the way in which the Russians have conducted that operation.
	Now, as I have argued before in the House, not for one moment does that begin to justify the vile and wicked things done at the school in Beslan, at the theatre in Moscow or, indeed, at the stadium in Grozny. Yet with that consistent, ongoing experience of the people of Chechnya, the certainties about what is and is not terrorism—about who is and is not conducting it, and about where state terrorism or the terrorism of others starts and finishes—all become much more confused and grey than it perhaps seems in abstract, intellectual deliberations in this Chamber. Therefore, this is no mere theoretical discussion. It has real and immediate implications for people in the midst of the most terrible situations—and their friends and supporters in this country. For that reason, we need to exercise great caution in our drafting. We also need to be quite sure that anything we say is presented in as certain a way as it is possible to be.

The Lord Bishop of Oxford: Perhaps I may follow the noble Lord. It seems to me that however tight the present legal definition of terrorism might be, there is huge confusion in people's minds.
	The noble Earl, Lord Onslow, and before that the noble Lords, Lord Lucas and Lord Ahmed, referred to certain causes that one might or might not support. The long tradition of Christian thinking on the subject makes a very clear distinction between the morality of a person's cause, which may or may not be justified, and the morality with which they pursue that cause. That is a separate issue which, again, may or may not be justified. So a person's cause may be morally legitimate, but they pursue it with terrorist tactics; that is, tactics designed to engender terror through attacks on civilians or attacks which are essentially indiscriminate. A precise definition of terror would be a tactic which is indiscriminate and disproportionate.
	What worries me about this debate, and why we are in such confusion all the time, is that people are slipping between discussing a cause which may be regarded as morally legitimate or illegitimate and having at the back of their mind certain terrorist tactics. I agree completely with the noble Lord, Lord Judd, that until we have a much tighter definition of terrorism, we will continue to sway in our minds between considering causes and considering the conduct with which those causes are pursued.

The Earl of Onslow: Is it not true that you could have an insurrection caused by a non-uniformed civilian rebellion using very extreme violence which is not terrorist in nature and a uniformed police, gendarmerie, militia or army which, in turn, uses terrorist methods to suppress that legitimate uprising? Does that not show even more muddle and underline exactly the point expressed so eloquently by the noble Lord, Lord Judd, and the right reverend Prelate?

Baroness Park of Monmouth: As a non-lawyer, perhaps I may ask for some clarification. I agree entirely with what has been said. It is quite wrong to confuse admiration for courage and belief in a cause with conceding the people involved the right to threaten and terrorise. The kind of terrorists I hope we are aiming at are, for instance, those people in the animal rights movement who believe it is right to threaten and attack others—as I believe recently happened to the entire board of the Bank of England. Those people are terrorists, but we are also talking about people who I agree are quite different. We are talking about those who have passion and courage in defence of a cause, but who are fighting, not terrorising. Is there no way that we can devise a definition to divide those two quite separate issues?

Lord Kingsland: I hesitate to enter into this aspect of the debate while on this group of amendments because I know that a later group will introduce the whole topic of the definition of terrorism and whether it is too wide or too narrow. I apologise to the Committee for the fact that Amendment No. 27 has strayed into this group of amendments because it plainly applies to Clause 2 rather than Clause 1. It ought to be included in the group beginning with Amendment No. 10.
	I agree with the noble Lord, Lord Lester of Herne Hill, in his identification of vagueness as the main disease of this Bill. It is indeed vague and it is therefore additionally worrying that such wide discretion is later given to the Director of Public Prosecutions in Clause 20. The combination of the vagueness of the Bill, together with the width of discretion given to the Director of Public Prosecutions, moves us nearer to a situation where the rule of law is displaced entirely by government discretion. Every clause should be tested with that yardstick in mind.
	We did not add our names to these amendments, but that does not mean to say that we do not have considerable sympathy with the arguments brought to bear by the noble Lord, Lord Goodhart, in support of them. We agree with the Joint Committee on Human Rights that there is a role for indirect encouragement, although that role should be much more tightly and narrowly defined than the definition to be found in the Bill itself. Clause 1(4) provides a definition of the notion of indirect encouragement, but nowhere in the Bill is there a definition of the concept of direct encouragement or, indeed, of encouragement itself.
	There is already an offence of incitement which would catch much of what would be published in the context that the Government seek to control. I wonder, therefore, if the noble Baroness, Lady Scotland, would be kind enough to explain to the House—to the extent that she feels able—the degree to which "encouragement" goes beyond "incitement?" Is encouragement the same as incitement? If not, to what extent does it go further? If it goes beyond, could she give us some examples of how incitement differs from encouragement? Until we understand exactly what is meant by "encouragement" in this Bill, I do not see how we can go on to analyse the distinction between "direct" and "indirect" encouragement.

Lord Slynn of Hadley: May I support what has just been said? If the intention, as everyone appears to agree, is to make the definitions here as precise and as clear as possible—which I fully endorse—then I am not yet satisfied that this amendment will achieve that. If you take out "direct" and "indirect," you leave simply "an encouragement". A court is bound to be asked to decide whether indirect encouragement is sufficient for this purpose. If the object of this exercise is to cut out indirect encouragement altogether, one has merely to delete "indirect" and leave in "direct". So far in this debate no one has suggested that this is the intention. It does not seem that the object of clarity is achieved by taking out words that the courts might have to decide many times are included, while having to look at "encouragement". I wholly agree with what has just been said by the noble Lord, Lord Kingsland, but what is really important is to get a clear definition of "encouragement". I do not think that this amendment will achieve that objective.

Baroness Scotland of Asthal: Can I respond to a number of those points? I thank the noble and learned Lord, Lord Slynn, for the point he made about "direct" and "indirect". In Committee we are invited to direct our minds to specific amendments to specific laws on specific issues, as opposed to having the illuminating but very general debate we normally enjoy at Second Reading. I shall look at the actual purpose of these amendments, which have greatly surprised me. Let me explain why. All these amendments seek to do is remove the reference to "direct" and "indirect" encouragement, leaving "encouragement" undefined; as the noble and learned Lord, Lord Slynn, says, we think that would be serially unhelpful. I think I also agree with the right reverend Prelate the Bishop of Oxford: it is important not to conflate terrorism with causes, just or not, which people pursue with energy. I will seek not to stray into those fields.
	The reason I confess to being surprised—even doubly so—by these amendments is that the Government announced our intention to create an offence of indirect incitement as long ago as July. At that time it was welcomed by the Liberal Democrats, who strongly supported the notion of such an offence. I am not clear why, precisely, there has been an apparent change of heart. The second reason for my surprise is that one of the key factors behind our decision—and, I am sure, the wholehearted support then expressed by the Liberal Democrats—was the intention to create an offence of indirect incitement in order to satisfy the Council of Europe Convention on the Prevention of Terrorism. Article 5 of that convention, as I am sure this House does not need reminding, requires that parties to it create an offence of public provocation to commit a terrorist offence, whether or not directly advocating terrorist offences. To put it bluntly, if these amendments were to be made the United Kingdom would not be able to ratify that important European convention. It would be, to say the least, an unusual position—I put it no stronger—for an internationalist party such as the Liberal Democrats to take. I wonder if, on further reflection, noble Lords will consider whether that is really what they intend to do or what the amendments are intended to achieve.
	We have discussed, and will discuss further in due course, the specific definition of terrorism. I understand the concerns that have been raised about that. My noble friend Lord Judd is right to remind us that one of the onerous tasks that have been given to the noble Lord, Lord Carlile of Berriew, when he comes to make his review, is to look at the definition of terrorism to see whether it needs further clarification and definition. We contend that Clause 1 is not too vague; that it is, in fact, clear.
	Terrorism and the convention offences—the things that must be encouraged—are clearly defined in Section 1 of the Terrorism Act and Schedule 1 to the Bill respectively. "An offence" makes it clear that the statements must be made publicly. It has clearly defined consequences: that a criminal offence with clearly defined penalties will be committed. The offence is also proportionate for the purposes of Article 10 of the ECHR—the noble Lord, Lord Lester, was right to anticipate that that would be, in part, our response—and only public statements are caught.
	The United Kingdom is facing a particular and specific threat of terrorism. This means that an individual's responsibility to refrain from making encouraging statements is heightened. The offence, once amended, will include a defence for those who do not endorse the statements. A statement which is caught could result in serious criminal proceedings and the consent of the DPP will be needed before prosecution can be brought. We need to keep these matters closely in mind.
	As to the concern raised by the noble Baroness, Lady Williams, and the noble Earl, Lord Onslow, in relation to dissemination, I wish to make it clear that I understand the context, whether she was talking about dissemination generally or dissemination of articles and materials used by academics and/or issued in libraries in a proper context. If she was talking about dissemination generally, I responded to that with a question mark. If she was talking about the dissemination of material, I hope she was in her place when I spoke about the amendments that we propose to make to Clause 1(7) and Clause 2(9). Those changes will mean that no one will commit an offence where they can show that the statement or publication did not have their endorsement. Academics and librarians will then be quite safe because it will be clear that the context in which they were dealing with these issues clearly meant that they were not endorsing them, so they will be able to discuss and debate these issues.
	The noble Earl, Lord Onslow, asked whether librarians would be safe to recommend the articles of Sandy Gall. If someone came in and said, "I wish to look at statements in relation to this matter; I am doing a thesis or research on it", they would be covered because it would be clear that they were not endorsing a statement but simply facilitating philosophical, academic or other proper debate.

Baroness Williams of Crosby: I am grateful to the Minister for clarifying the point. I was in my place for her earlier intervention. She has explained the issue in a clearer way and I am grateful to her for what she has said.

Baroness Scotland of Asthal: In my earlier comments I hoped to encourage those issues to be taken out, because we will have a context which will mean that the concerns raised by noble Lords at Second Reading can be assuaged. There would be clarity between that which is proper and that which would directly or indirectly promote terrorism. That is why I intervened, and I hope that it has not taken us into an approach more like that of Second Reading.
	I hope that noble Lords will not seek to press Amendments Nos. 4, 26, 28, 31 and 63. I cannot believe that it is the intention of the Liberal Democrats to disable us from ratifying the convention. That was not their view—it has never been their view—and I would be very shocked indeed if that is the consequence that this debate now brings us to.
	I turn now to Amendment No. 27, to which the noble Lord, Lord Kingsland, has spoken.

Lord Kingsland: Will the noble Baroness speak to that later, because it applies to Clause 2? I apologise for its mistakenly being in the group.

Baroness Scotland of Asthal: I accept the apology. I thought that the noble Lord apologised for the amendment being in the group but spoke to it, and therefore that I would have to deal with it. I am more than content to deal with it subsequently.

Lord Kingsland: I should, perhaps, apologise for being here at all.

Baroness Scotland of Asthal: How could the noble Lord deprive us of such a pleasure?

Lord Kingsland: I am most grateful for that remark, although I am not rising to reply to it. Would the Minister consider responding to the issue that I raised towards the end of my intervention, when I addressed the offence of incitement and asked to what extent the definition of encouragement went wider than the definition of incitement and, to the extent it does, how she would formulate the distinction?

Baroness Scotland of Asthal: "Encouragement" can be broader than incitement. I am sure that the noble Lord is thinking of the incitement provisions in racial and religious harassment legislation and is perhaps seeking to conflate the two. I see him shaking his head vigorously and saying, "No, he is not". I do not know whether the noble Lord is suggesting in relation to intent and recklessness whether I am saying that incitement and encouragement are the same. Incitement is not included in—

Lord Kingsland: It is clear that we already have legal authority to prosecute for incitement in the general context of terrorism and of what the Bill seeks to achieve. In our attempt to get to grips with the concepts of "indirect" and "direct" in relation to encouragement, I was simply asking the Minister what distinction she saw between the definition of incitement and the definition of encouragement. Clearly if encouragement means only incitement, there is no point in inventing "encouragement". If it means something more than incitement, what does it mean?

Baroness Scotland of Asthal: As the noble Lord knows, encouragement can be direct and indirect; incitement is only direct—you directly incite someone to do things. The difficulty is that, with regard to terrorist activity, it is often said, "I did not seek to incite someone to do X, Y or Z, but the words I used positively encouraged them so to do". There is a distinction between those two things.
	We can already prosecute for the specific offence of terrorism. The provision will enable us to present those cases where "encouragement" falls short of sufficient information in relation to "incitement". When someone makes a statement which does not directly incite but nevertheless encourages someone to do something and create an act of terror, it will enable us to intervene at that point.

Lord Mayhew of Twysden: Now that the noble Baroness has conceded that there is to be a subjective test and it will be a question of whether someone has been knowingly encouraging, are we not discussing an extraordinarily narrow line between someone knowingly encouraging somebody to do something and inciting them to do it?

Baroness Scotland of Asthal: It is a narrow line and might cause a number of people to say that we should not have a subjective but an objective test. A subjective test is much more difficult to satisfy than an objective test, which would enable one to consider what a reasonable person in that situation would have foreseen. It is always possible, once one has a subjective test, to say that a reasonable person may have seen this as a foreseeable consequence, but individual X did not. Therefore, it is much more difficult to prove that they did. That issue has troubled us greatly—it troubled us in the other place and it troubles us now—in terms of whether it would be possible to prove this offence in a way that would give the offence teeth. The noble and learned Lord is right to point out that a subjective test will make the offence more difficult to prove that that is the express intent of many, and we have accepted that that should be the position.

The Earl of Onslow: Would it be fair to say that encouragement is saying, "X is a good thing", and incitement is saying, "Go and do X", and that that is the difference between them? We have to ask ourselves whether we should carry the prosecution and make it an offence to say that something is a good thing rather than saying, "Go and do it". Is that a fair definition?

Baroness Scotland of Asthal: I see what the noble Earl is directing his mind to. It is not entirely apposite because directly inciting someone and giving them the wherewithal to complete the offence is one thing; "encouraging" falls short of the direct offence of incitement. We have to consider whether we believe that people should be able to encourage others to commit acts of terror. We on this side of the House are very clear that they should not be encouraged or lawfully allowed so to do and that we should do all we can to prevent them so doing.

Baroness Symons of Vernham Dean: I, too, am not a lawyer and have listened closely to what has been said. Is not an indirect encouragement a statement which says that, to take a current example, people who undertake certain sorts of suicide bombings will be rewarded in the afterlife with pleasures beyond the sorts of things they currently enjoy? Is it not an indirect encouragement to say that people who undertake suicide bombings receive money from certain sources? While not asking an individual directly to undertake these suicide bombings, the statements of what may be the reward to those who do could be an indirect encouragement. Is that not what we are trying to stop—the sort of indirect encouragement which susceptible people might take as the go-ahead to carry out such crimes?

Baroness Scotland of Asthal: My noble friend is right, to the extent, of course, that one has to incite a person to commit a specific act. It cannot be an incitement to commit acts of terrorism generally. I take as an example the noble and learned Lord, Lord Mayhew, because I know that he is a gentleman of resolute character. Let us suppose that I were to make statements to try to incite him to commit an offence in relation to his noble friend on the Front Bench. If I named the person to whom he should direct his attention and specified the acts, I could be accused of, and properly arrested for, seeking to incite the noble and learned Lord to do something of a criminal nature in relation to the noble Lord, Lord Kingsland. If, however, I were to encourage Members on the opposite Benches to commit imprecise, general acts of terror, that would be encouragement, but I could not be accused of having incited someone to commit a specific act. So encouragement is much more general. I suppose that that is the real distinction between the two: incitement relates to specific acts, and encouragement to general acts of terrorism.

Lord Cameron of Lochbroom: We have been talking about encouragement, but I remind noble Lords that the phrase used in Clause 1(1) is not merely "encouragement", but also "or other inducement". That may be one of the issues which arise in relation to matters such as promise of reward, either here or hereafter.
	I have one further point. Subsection (4) refers to indirect encouragement, but it does not make any reference to indirect inducement. There may be a good reason for that. I do not know whether the Minister is in a position to explain it, but it seems that the point should at some stage be addressed.

Lord Goodhart: I am grateful for the support which my amendments have received, not only from my noble friends, but from other quarters of the Committee. The purpose of the amendment is not, as the Minister seemed to think, to state that the Government must never introduce an offence of indirect terrorism. Its purpose was to raise a debate, which indeed it has, about what "encouragement" means; about what "direct encouragement" means; and about what "indirect encouragement" means. It is plain, and it has been borne out by the report of the Joint Committee, that when one is creating a new offence, one should make sure that it is adequately defined. In the case of the Bill, "encouragement" is not defined; "direct encouragement" is not defined; and "indirect encouragement" is not defined.
	It is necessary to start by defining "encouragement". Once one has done so, one may well find that it is unnecessary to distinguish between direct and indirect encouragement. Let us say that one's definition states that "encouragement" is, "saying or doing anything which makes it more likely that some recipients of your message will become involved in terrorist activity". That would seem to be a perfectly adequate definition of what is meant by "encouragement". I am not necessarily putting it forward to the Government, but one has to start by defining "encouragement". Only then can you move on to see whether you can in fact produce a sensible division between direct and indirect encouragement, and, if so, where that division lies. To begin with, I asked the Minister whether she could give me any indication of what, apart from the specific matter of glorification under subsection (4), might be covered by "indirect encouragement", and she failed to do so.
	We need further clarification of what the Government have in mind. I should add that issues were raised during the debate relating to the problems of Kashmir and Chechnya. There will be opportunities to come back in more detail on those issues when we get to later amendments. At this point I say simply that if "indirect encouragement" goes as wide as the Government seem to intend at present, we could well find ourselves in a position where if the noble Lord, Lord Ahmed, were to say outside your Lordships' House—where he would be protected by parliamentary privilege—the words he said tonight, which he was perfectly entitled to say, he might face a charge of indirect encouragement.
	The long term may be that my noble friend Lord Carlile of Berriew will recommend a revised definition of terrorism, and the Government may accept it and legislate for it. The problem here, though, is that the Government clearly do not intend to defer the commencement of the provisions relating to indirect encouragement until such time as we have a revised definition of terrorism.
	While I do not necessarily expect to bring these amendments back at a later stage, because they are intended to provoke a debate rather than to change the Bill, it is important that the Government give further thought to what they mean by "encouragement". I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Goodhart: moved Amendment No. 5:
	Page 1, line 11, leave out "on his behalf"

Lord Goodhart: My Lords, this is a very brief probing amendment. It arises because Clause 1(2) says:
	"A person commits an offence if—
	"(a) he publishes a statement to which this statement applies or causes another to publish such a statement on his behalf".
	I am simply asking: what is the point of the words, "on his behalf"? Might it not, for example, prevent the prosecution—which I would have thought would be fully justified—of an intermediate who gets someone else to publish the statement, not on his own behalf, but on behalf of a third party who has created the original statement? That is all I have to say on this rather limited issue. I beg to move.

Baroness Scotland of Asthal: I find myself once again in the unusual position where the noble Lord, Lord Goodhart, is suggesting that a provision should be widened rather than narrowed. It is indeed an unusual sensation to be saying to the noble Lord that we feel that the current tightness of our provision is more accurate because it targets those whom we think should be captured, and we do not believe that it should be extended in the way the noble Lord seeks.
	The offence in Clause 1 will allow us to comply with Article 5. I have made it clear that that is what we intend and want to do. We do not want to go wider than that. The provision is drafted for that purpose. The language is accurate, and the suggested amendment would be less clear than the current drafting. Amendment No. 5 would widen the offence in ways that we in the Government do not regard as necessary. Instead of restricting the offence to persons who publish statements which encourage terrorism or to persons who cause others to publish such statements on their behalf, the offence would also apply to persons who cause others to publish such statements but on behalf of third parties.
	I am terribly interested in what the noble Lord is suggesting, because it is contrary to everything else that he has suggested. The amendment means that he would like to widen this provision and I do not believe that that is necessary. The Government would like to keep it as narrow as possible and necessary. We think that it is narrow enough as it is and we do not particularly want to widen it to catch any more people, although I thank the noble Lord for his invitation.

Lord Goodhart: We on these Benches accept the necessity for some legislation and where we believe that there is such a necessity we wish to make it as effective as it properly can be. Therefore, there is nothing inconsistent with our attitude in proposing amendments that would, in a small way, strengthen the provisions of the Bill. However, this is a small issue which is not worth pursuing at any great length. I therefore beg leave to withdraw the amendment

Amendment, by leave, withdrawn.

Lord Brougham and Vaux: I remind the Committee that if Amendment No. 6 is agreed to I cannot call Amendments Nos. 7 to 9 because of pre-emption.

Lord Goodhart: moved Amendment No. 6:
	Page 1, line 13, leave out from "(1)" to end of line 18.

Lord Goodhart: I am sorry for rising yet again, but this time the issue is one of great importance and the Government will not regard it as strengthening the Bill. The purpose of Clause 6 is to remove the recklessness test and require actual intent. We believe that that would be in line with Article 5 of the Council of Europe's Convention on the Prevention of Terrorism.
	We welcomed with faint praise the government amendment in the House of Commons and we welcomed with perhaps slightly stronger praise the Government's announcement through the Minister this evening that they will accept that the test of recklessness should be subjective rather than objective. That is a considerable improvement. As the Minister said, she will accept the amendment to remove subsection (3) which converts the provision from objective to subjective recklessness, which we support. However, we would prefer to remove recklessness altogether.
	Recklessness clearly has a part to play in the criminal law. It involves a conscious running of a risk. For example, someone who drives dangerously, not wanting to kill some other user of the road but being aware that his dangerous driving increases the risk that someone else will be killed, is plainly guilty of recklessness. However, it is not easy to transpose the concept of recklessness to the encouragement of terrorism or to anything that my noble friend Lord Lester of Herne Hill described as a speech crime.
	The problem here is that what creates the crime is not the objective physical result—the causing of death or injury to another—but the effect of the encouragement on the subjective mental state of people who read or hear the statement. That is not always predictable and may, and almost always will, vary among those who hear the statement. If intent on the part of the maker of the statement is necessary then there is no problem. It is always possible for a jury to draw the inference that when the meaning of words is obvious, that is the meaning that the user of those words intended. If the statement is, "Go out and become suicide bombers", the intent to encourage terrorism is obvious and the inference is inescapable. If every hearer or reader of the statement is likely to read it as encouraging terrorism, then that inference can hardly be avoided.
	However, what if the meaning of the statement is not so obvious? Recklessness may involve a very complicated scenario. It involves someone making a statement which is not unequivocally supportive of terrorism but which he realises may be seen or heard by possible recipients of the messages as encouraging them to acts of terrorism. For example, a strong attack on Israeli conduct on the West Bank which does not mention the use of violence against them may nevertheless encourage people who hear that statement to acts of violence. That could help to stir up some who hear or read the statement to become terrorists. The person who made the original statement may well foresee that as a risk, but, if so, there is a real problem, because any strongly worded criticism of an oppressive government may stir up hostility towards that government and may encourage—I will not say directly or indirectly—terrorism. At that point, it becomes an unacceptable interference with the freedom of speech if that was not the intention of the person who made the statement.
	I accept that intentional encouragement of terrorism should be an offence, but a verbal attack, even if it were a fiery and emotional one, on perceived oppression should not be an offence simply because the maker realises that it might stir up the flames of violence. We cannot silence critics of regimes on the West Bank, in Burma or in Zimbabwe. If recklessness stays in the Bill, there is a real danger that that is what it will do. I note that the Joint Committee was prepared to accept subjective recklessness as a test. I would go somewhat further, but I certainly agree that if recklessness is to be included, there must be a public interest defence so that strong criticism of foreign governments cannot be an offence. If that risk was taken out, then maybe we could go back to recklessness. But, at the moment, I do not think that there is adequate protection for those who express strong feelings, which they are now legitimately entitled to express, about what they see as oppression, breaches of human rights and even genocide in foreign states.
	Amendment No. 19 is consequential and removes Clause 1(7), which gives a specific defence that a statement was published in ignorance of its contents. That subsection would not be needed if intent was an essential requirement for an offence under Clause 1. I beg to move.

Lord Lloyd of Berwick: I support this amendment. I am afraid that the concession that the Minister has offered on subsection (3) does not satisfy me. I have found it useful to trace the history of Clause 1 as it has developed over the past few months to see what it is the Government are trying to achieve. That is what has caused us so much difficulty today.
	On 20 July, we were told that there would be three new offences: the preparatory offence, the training offence and the indirect incitement offence. In a letter to Mr David Davis and Mr Oaten, the Home Secretary accepted at that time that direct incitement was already covered by the common law and therefore there was no need for a new offence of direct incitement. The only odd feature is that there has been no attempt, so far as we know, to prosecute any of these so-called loudmouths for direct incitement.
	The Home Secretary's letter went on to explain what he meant by indirect incitement. This is perhaps my footnote to the discussion that has been taking place this afternoon. He stated:
	"We now want also to cover indirect incitement to terrorism. We intend that the new offence should capture the expression of sentiments which do not amount to direct incitement to perpetrate acts of violence, but which are uttered",
	—the following are the important words—
	"with the intent that they should encourage others to commit, or attempt to commit, terrorist acts".
	So the difference between direct and indirect incitement depends not on a difference of intent—both require the same intent. The difference seems to lie in the strength of language used by the potential defendant. As the noble Lord, Lord Hurd, said at Second Reading, direct incitement will lie with the "loudmouth" who shouts from the hilltops. If convicted, he will get a life sentence. Indirect incitement seems to apply to the man whose sentiments are expressed more obliquely or in a more guarded manner. He will get not a life sentence but seven years. But I emphasise that the intention is exactly the same. The defendant would be indicted with two charges, direct incitement and what I shall call indirect incitement. The jury would have no difficulty at all in deciding which of these charges to convict on, if either.
	So far, so good. I have no difficulty with indirect incitement in that sense. However, we come back to the question of the mental element of that offence. In his Statement on 20 July and in the Home Office press release on 6 October, Mr Clarke, the Home Secretary, made it clear that the offence of indirect incitement would depend on intention. There is no doubt about what he was trying to achieve. That would fit entirely with the Council of Europe convention and the offence of provocation, because—as the noble Baroness will know, given that she quoted part of the definition of public provocation—it goes on to use the same words, that the offence would have to be "with the intent" to incite the commission of a terrorist offence.
	So far there has been no reference to anything of the kind that we now find in Clause 1. What happened was that on the very day the Home Office was saying that it would depend on intent, the Government published the second draft of the Bill and there was no mention of intent anywhere. It said that the offence is committed if the defendant has "reasonable grounds for believing" that it would encourage. I remember my astonishment in reading those draft clauses. I was going to be interviewed that night so I had to see if I could find out what they meant. Although the Home Secretary had said that intention was the essence of this, nevertheless, when the Bill was published, there was no reference to intention but to something quite different—reasonable grounds for believing.
	When the Bill had its Second Reading in the House of Commons, of course Mr David Davis keyed in on that very point—we cannot have reasonable grounds for believing, we must have intention. That is what has been suggested all along. But then something happened which I do not understand. What should have happened is that intention should then have replaced the words "reasonable grounds for believing" but for some reasoning intention was coupled with recklessness; and that is the whole problem. "Recklessness" simply does not fit into this context at all. You can make a reckless statement in the sense that you are reckless as to whether or not it is true, but to make a reckless statement in the sense that you do not care how it is understood I find extremely difficult to understand. I am sure that a jury would find it equally difficult.
	Recklessness is notoriously extremely difficult to define to a jury. It is even difficult to define it to judges, because Law Lords have differed about this, as the noble Lord, Lord Thomas of Gresford, will remember when he failed to win the Caldwell case. Yet recklessness has been induced here at this stage, apparently for no other reason than to secure more convictions, and, as the noble Lord, Lord Plant, observed during the Second Reading debate, that is a very weak ground for a new offence. It would be a bad ground because it will not secure any more convictions at all.
	The Government seem to have the view that they needed to introduce recklessness because of the difficulty in proving intention. But we prove intention day in and day out in the courts. If there were any difficulty in proving intention, the prisons would be only half full instead of overflowing. We can prove intention; the difficulty is in proving recklessness. That is going to cause much more trouble for apparently no real object and will certainly lead to many more appeals.
	At Second Reading there was very little support, if any, for recklessness as a test. Two very powerful speeches were made against recklessness: by the noble and learned Lord, Lord Morris of Aberavon, who implored the Government to take back recklessness—recklessness, not subsection (3)—and by the noble Lord, Lord Plant, who made, it seemed to me, an unanswerable case against the clause based on recklessness.
	So I hope that the Government will have second thoughts about this fallback position of recklessness, which will not work, and that the Conservative Opposition will also have second thoughts and support this amendment rather than the one in their own name.

Lord Thomas of Gresford: I support my noble friend Lord Goodhart in this amendment. Reference has been made to the case of Caldwell by the noble and learned Lord, Lord Lloyd. That was reversed in the case of R v G in 2003. It is quite instructive to look at the speech of the noble and learned Lord, Lord Steyn, in that case. This is what he said about it:
	"The surest test of a new legal rule is not whether it satisfies a team of logicians but how it performs in the real world. With the benefit of hindsight the verdict must be that the rule laid down by the majority in R v Caldwell failed this test. It was severely criticised by academic lawyers of distinction. It did not command respect among practitioners and judges. Jurors found it difficult to understand: it also sometimes offended their sense of justice. Experience suggests that in Caldwell the law took a wrong turn".
	I have to accept, as the noble and learned Lord has pointed out, some responsibility for that, since my argument failed in Caldwell. The noble and learned Lord, Lord Steyn, went on:
	"That brings me to the question whether the subjective interpretation of recklessness might allow wrongdoers who ought to be convicted of serious crime to escape conviction".
	The noble Lord, Lord Waddington, earlier this afternoon asked whether bringing in a subjective test of recklessness would have this effect.
	The noble and learned Lord, Lord Steyn, continued:
	"Experience before the R v Caldwell did not warrant such a conclusion. In any event, as Lord Edmund-Davies explained,"—
	and I have to say that he agreed with my argument—
	"if a defendant closes his mind to a risk he must realise that there is a risk and, on the evidence, that will usually be decisive . . . One can trust the realism of trial judges, who direct juries, to guide juries to sensible verdicts and juries can in turn be relied on to apply robust common sense to the evaluation of ridiculous defences".
	That was the decision of the Judicial Committee, having to interpret recklessness in an existing statute—that is, the Criminal Damage Act.
	That is a difficult concept and it is unnecessary when one is dealing with the speech offences, with which this Bill is concerned. We are concerned not with how a person acts but with what he says and what its effect will be on the audience. Either he is trying to encourage them, in which case it is arguable that he should be punished for doing that, or he is not. It has to be a statement. It is not enough for him merely to applaud a speaker or to shout in a crowd to encourage people. He has to be saying something to people. He knows what he is saying. If he is trying to encourage, he should be punished. If he is not trying to encourage and somebody takes it the wrong way in a way that he cannot possibly foresee, he should not be punished. That is the issue with which we are concerned, and I fully support my noble friends in his attempt to exclude entirely from the Bill this very difficult concept of recklessness in the criminal law.

Baroness Scotland of Asthal: Of course I understand the purport of the opposition of the noble and learned Lord, Lord Lloyd, and the way in which it is put by the noble Lords, Lord Goodhart and Lord Thomas.
	To make it clear, we believe that one has to look at the way in which this Bill has been framed. In framing the Bill we have had to try to fulfil two obligations. The first is our obligation to our partner countries in the Council of Europe, to which we have already alluded, and, in order to ratify the Council of Europe Convention on the Prevention of Terrorism, we needed to create an offence of incitement to terrorism, whether that incitement is direct or indirect. Noble Lords know that Clause 1 purports to satisfy that end and create this offence.
	Noble Lords are right to have said that there is already an offence in our law directly to incite a person to commit a specific act of terrorism. We do not seek to interfere with the common law in the way in which the noble and learned Lord, Lord Lloyd, set out in advancing his remarks on this amendment. It is not an offence, as we have already discussed in our debate on the previous amendment, to incite people to engage in terrorist activities generally, or to incite them obliquely by creating the climate in which they may come to believe that terrorist acts are acceptable. That is the gap that we want to close, both to enable us to fulfil our international obligations and because we believe that it is desirable in its own right. I remind the Committee of the powerful speeches made, particularly on Second Reading, not least by noble Lords on Benches opposite, the noble Baronesses, Lady Park of Monmouth and Lady Ramsay of Cartvale, and other noble Lords who have great experience of that. We are living in a different context.
	The second obligation is, of course, to the electorate. The manifesto on which the Labour Party fought, and won, the 2005 general election contained a clear commitment to create a new offence of glorification. The offence in Clause 1 allows the Government to meet their obligations to the electorate.
	Having outlined the intentions behind Clause 1 in broad terms, I should also like to stress what it is not intended to do. The Government have no intention of outlawing legitimate activities that do not encourage or help terrorists. The emphasis on context and the defences provided in Clause 1 are designed to ensure that teachers, lecturers and writers can all go about their business freely. I am satisfied that the Bill does not pose a danger to such people.
	I am, however, conscious—and we have debated this both on Second Reading and today—that many noble Lords have expressed concerns that the activities of such people will be criminalised by this clause. That was raised by the noble and learned Lord, Lord Lloyd of Berwick, and is exciting the attention of the noble Lords, Lord Thomas of Gresford and Lord Goodhart. That is why I made my earlier comments on our proposed amendments. The most important amendment which we are now considering, Amendment No. 6, means that the offence in Clause 1 would be committed only—I emphasise this—if the person making the statement intends to encourage terrorism. There would be no provision relating to recklessness at all if the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Goodhart, had their part.
	There has been much debate about the objective and subjective elements. They were considered extensively both in the other place and on Second Reading. The provision that the offence should be committed if the person making a statement intends to encourage terrorism clearly needs no further justification. I think we are all agreed—as was clear from the statements of the noble and learned Lord, Lord Lloyd of Berwick—that people who make statements which they intend to encourage terrorism should be committing an offence. We are in total agreement, ad idem.
	I am also absolutely satisfied that a recklessness limb is justified. People who knowingly make statements that will encourage their audience to commit acts of terrorism should be covered by this offence. Indeed, the very idea of a defendant arguing that he knew his statement would encourage terrorism, but that he did not intend that it should do so, shows how difficult the amendment is. It is verging, if I may respectfully say so, on the absurd. Would we really want defendants going scot-free who quite brazenly say that they knew what the effect of their statements would be, but made them anyway?
	Before even considering the changes the Government now propose to make, I would therefore urge noble Lords to withdraw their amendments, bearing in mind the clear change that I have signalled that the Government are minded to make. In order to explain our change, I perhaps need to say a little more.
	The detail of what the recklessness limb should be is, of course, complicated. In order that the Committee should fully understand the implications of Amendment No. 6, I need to explain what the Government propose to do to the recklessness limb which this amendment would remove. Although this anticipates matters that will be debated further at a later stage, it is necessary in order that your Lordships should know what they would be rejecting, if they were to support this amendment, which comes first.
	As the Committee will be aware, much of the debate on recklessness focused on subjectivity and objectivity. If a person could not reasonably have failed to know what the effect of his statement would be, he should not be able to escape punishment by simply asserting that he did not know what the effect would be. However, we understand the difficulties that poses, the arguments extended about Caldwell, and the arguments about where the law now is in relation to R v G. That is why I signalled today, on behalf of the Government, that we are prepared to move to the subjective test of recklessness in Clause 1 of this Bill, which both the Her Majesty's loyal Opposition and the Liberal Democrats voted for in another place. On that basis, we will support Amendment No. 9, tabled by the noble Lords, Lord Kingsland, Lord Henley and Lord Goodhart, and the noble and learned Lord, Lord Cameron of Lochbroom.
	As I understand it, the noble Lord, Lord Goodhart, is indicating that he would prefer the removal of "recklessness" in its entirety. If "recklessness" should remain—he does not admit that—he would prefer the subjective, as opposed to the objective, test. The effect of this change, if we adopt the position of Amendment No. 9, will be that the prosecution will have to show not that the defendant could not reasonably have failed to know what the effect of his statement would be, but that he did in fact know what the effect would be.
	This amendment would provide the comfort that many on this Committee said that they needed in order to assuage their concern over this offence. If that construct is accepted and adopted by us all, there will then be no circumstances under which this offence could be committed if the defendant did not either intend to encourage terrorism or know that his statement would encourage terrorism. Speaking entirely for myself, I can see no reason why people should be allowed to encourage terrorism intentionally, or to make statements that encourage terrorism recklessly, when they know what the effect will be. It would be unfortunate indeed if we were to allow people the opportunity to abuse our citizens in a way which would have such potentially horrific consequences, and if we did nothing to prevent it.
	In view of the change to a subjective recklessness test, which the Government will seek to introduce on Report, I invite the noble Lord to indicate that he is content to withdraw the amendment.
	There are still more reasons why he should do so—

The Lord Bishop of Oxford: Can the Minister help me on the last point before she moves on? Suppose that a person supports a particular armed struggle but disapproves of some of the terrorist tactics they use. Supposing they make a speech supporting the cause, and they know—they do not approve but they know—that one of the effects of their speech will be to strengthen those who want to use terrorist tactics in their favour. Will they be caught by the new government amendment with its subjective recklessness test?

Baroness Scotland of Asthal: First, their intent has either to be to encourage the commission of those acts of terror, or to make statements, knowing it will encourage acts of terror to be committed, but are reckless as to those consequences; they may say, "I will do it anyway". Similarly, someone may say, "I wish to blow up an aeroplane. I do not wish to kill any of the people on the aeroplane, but I intend to put the bomb on the aeroplane and I am reckless as to the consequences". If you intend to do something, the consequences of which are known to you, and those consequences occur, you must be held responsible for what you have done. In the description that the right reverend Prelate the Bishop of Oxford gives, it would be perfectly possible for the person making that speech to make a distinction between the cause and the way in which others pursue it. It would be possible to say that I absolutely abhor all forms and acts of terror and I do not believe it is possible to legitimately pursue these aims using those acts of terror, albeit that I understand the mischief from which you suffer and which you seek to address. It is perfectly possible to make a speech in which one clearly disassociates oneself from the type of acts of terror which are used by individuals to pursue their aims.
	This Bill says, "If people do not wish to endorse those acts of terror, they should make it plain that they do not seek so to do". I do not believe that it is beyond the wit of man to make that distinction. Innumerable people have done that. The behaviour and statements of Gandhi—at a time when terror was being used—made it absolutely clear that he agreed with the independent struggle and with change but he fundamentally disagreed with those who used acts of terror to pursue that cause.

Lord Lloyd of Berwick: Does the noble Baroness accept that we would comply with our international obligations under Article 5, if Clause 1(2)(b) stopped with the word "intention"? If she does accept that, what is the justification for adding anything to this involving recklessness?

Baroness Scotland of Asthal: As I have tried to make plain, we believe the two parts are justified. We think it is right that the issues I have just outlined should both be caught. We do not think it is appropriate where someone knows the consequences of what they have said for them simply to say, "I am not caught and I can continue to encourage". It is important for both limbs to be caught. If one accepts the subjective test—which I have indicated as clearly as I can that we do—that gives a very high hurdle over which people would have to jump, in order to make sure that the person charged with this offence intended to commit this offence, or intended the consequences in the way I have just described.

Lord Judd: Could I raise with my noble friend the difficulty some of us have with her argument? Much of her argument is very persuasive. The difficulty, as some of us understand it, is that the Home Secretary has said that he believes there is nowhere in the world where violence, including violence against property, can be justified as a means of bringing about political change. Is my noble friend saying that no distinction can be drawn between highly targeted violence which seeks not to hurt innocent people—in the kind of situation, for example, which I described in Chechnya—and terrorism?

Lord Ahmed: May I also add that during the elections, and even after the elections, many Members from the other place went to the Kashmiri community in the United Kingdom, where they were saying openly that Kashmiris are freedom fighters and not terrorists? The Prime Minister, during his visit to India, said that they are terrorists. Would those Members of Parliament, when they go back to their constituencies with their Kashmiri constituents, be allowed to say that they are freedom fighters, or would they now have to say that they are terrorists?

Baroness Williams of Crosby: I want to add one more example to the Minister's interesting explanation. When there is a constitutional or democratic route to change a government, all of us understand that the case for terrorism becomes extremely weak. If there is no such route—if no method of peaceful and effective protest exists—does the situation not change somewhat, particularly in the strongest case given by the noble Lord, Lord Judd, about terrorism against property? For a long time, Umkhonto we Sizwe of South Africa was the outstanding example, in so far as it did not have a strategy of attacking people but did have a clear strategy of targeting property. Most or many people of this country fully approved, because there was no other route that existed by which they could constitutionally pursue their attempt to change the regime. Does that not make a difference, and is it not characteristic of some of the positions that our Government—and that of the United States, to give another example—have taken? The non-existence of a democratic challenge alters the basis upon which one may or may not accept methods that are necessarily extra-parliamentary and possibly violent.

Baroness Scotland of Asthal: Of course there are some very complex and difficult questions in relation to determining when terrorism is terrorism. We have discussed this not least because of the innate difficulties in the changes that we propose. We have spoken today and on other days about whether the change of the definition is merited, and what the noble Lord, Lord Carlile, will suggest to us when he reports. We do, however, now have a pressing difficulty. We have been very clear. We need to remind ourselves of the context in which we currently live, where suicide bombers and acts of terror are outwith the sort of buildings or matters the noble Baroness speaks of. The terrorism that we are dealing with on a day-to-day basis is a terror which takes lives and which visits huge mayhem on those who are innocent of any degree of culpability at all. Where one stimulates and encourages such acts of terror, it is critical to look at those issues.

The Earl of Onslow: There is nothing new in this. The King David Hotel in Jerusalem was blown up by a gentleman who was later welcomed in Downing Street. In the village of Dier Yasin in Palestine, 230-odd women and children were slaughtered by terrorists, including a gentleman who was later welcomed in 10 Downing Street. The Government are trying to muddle something that is difficult to define. One man's terrorist is another man's freedom fighter. There is a whole list of people whose actions hundreds of British governments have approved. There were the guerrillas in Spain during the peninsular war and the Afghan guerrillas under the Russian occupation. We are in danger of getting ourselves into the most appalling muddle and it will not be the first time.

Baroness Scotland of Asthal: I hear what the noble Earl says about muddle and some powerful speeches outlined why, regrettably, the position on terrorism that we face today is significantly different from that which we have ever faced. I know that the noble Earl may not accept that but we believe that the terrorism with which we are currently faced is significantly different. It is of a more virile, disparate effect.
	In answer to my noble friend Lord Ahmed, no one is saying that people must define how they describe people—as Kashmiri, independence campaigners, freedom fighters or terrorists. The Bill does not criminalise any description. We must be clear about what the Bill does. What is criminalised is the encouragement to commit terrorist acts, whether by express intent or recklessness where there is the application of the subjective test. That is a narrow compass indeed. A person could not reasonably have failed to know what the effect of his statement would be should he make it. There will be no circumstances under this offence, if we amend it as I describe, where the offence could be committed if the defendant did not either intend to encourage terrorism or know that his statement would do so. That is what Re G does. It says, "You either expressly intended or you knew that your statement would encourage terrorism". In those two narrow circumstances, culpability would have to be demonstrated that this offence would bite. We can put to one side the arguments about what a reasonable person might have thought objectively about what was said and we have to look at the specific, the subjective, of what this individual—not someone else—intended or knew. They will either stand or fall, be convicted or acquitted, on the basis of what they did, what they intended and what they knew. That is what the majority of people in this House wanted to see. With the combination of specific intent and a Re G form of recklessness, that is what we have.
	There are those who would say that Re G is wrong. I have got to the stage where I do not know what cannot be said. However, I say strongly that where the Government, having listened so carefully to what was said in the other place by Her Majesty's loyal Opposition and the Liberal Democrats, and having listened to what was said by the majority in this House and just as powerfully by those who sit behind me on our Benches, we have come to the view that the right course would be intention and Re G recklessness. I have not stood at this Dispatch Box so long that not even I sometimes hope that I will be met with a certain degree of welcome when the Government move as far as we have moved today.

The Earl of Onslow: I thank the Government for going as far as they are. However, we are trying to get seven-eighths perfection as opposed to only six-eighths.

Lord Monson: The Minister keeps talking about people reckless as to whether their words would encourage terrorism. What about the word "might"? People cannot be certain when they stand here what effects their words will have on freedom fighters or guerrillas—call them what you will—several thousand miles away. They might hope that their words of sympathy would not encourage terrorism, but they cannot be certain.

Baroness Scotland of Asthal: The noble Lord makes the case for an objective test, which the Government would have preferred. I underline that he has indicated why proving the test on which we may be about to agree will be so difficult to satisfy. That is the test which the Government, on reflection, consider is the most appropriate. It is that most likely to satisfy the concern which has been expressed in this House. We do so knowing that if we were to apply an objective test to a number of these cases, there may be clear objective indications that this person must have intended. However, unless and until the prosecution can prove that they knew that would be the effect, this offence would not be made out. That is what I am indicating to the Committee that the Government are prepared to agree to. We understand the enormity of the concession that we are making in that regard.

Lord Goodhart: I am grateful to those who have raised a number of interesting issues in this long and serious debate. However, I am concerned that the Minister does not seem fully to have appreciated the depth of the problem. Let me take a hypothetical situation, but one that is wholly realistic, of someone who writes an article or makes a speech saying that the people of Chechnya are entitled to independence from Russia if they want to have it. Let us suppose that that person at the same time condemns the attacks on the school children at Beslan and on the theatres in Moscow as being both evil and counterproductive. Nevertheless, anyone making such a speech will be well aware that a body of public opinion in other countries, building up in support of independence for Chechnya, will in some measure give support to those who are taking armed steps against Russian soldiers in Chechnya.
	The definition of terrorism in the 2000 Act is very wide. It does not apply to heinous acts such as the attack on the school at Beslan. It extends also to attacks on Russian soldiers who are trying to impose an unpopular government on the inhabitants of Chechnya. It seems beyond doubt that anybody making that speech will know that it will be part of the cumulative effect of foreign support. In those circumstances they will be in breach of the test of recklessness. Although they do not intend armed struggle in Chechnya they are doing something that makes it somewhat more likely to happen. That would necessarily be an offence under Clause 1. It is essential to get that sort of statement out of criminal liability.
	I have an example from my own record. In 1993 I led a team of people on behalf of the International Commission of Jurists to Kashmir. We delivered a report on human rights in Kashmir. One of the things we said in the report was that the inhabitants of Kashmir had been denied the human right of self-determination under Article 2 of the International Covenant on Civil and Political Rights. At no point in our report did we support militancy in Kashmir. Nevertheless, I have to say that if I were writing that report now, I would be seriously concerned about my potential liability. We must either eliminate even subjective recklessness as the basis for an offence under Clause 1, or we must as an alternative come back with a new provision. I have made an attempt at one, which will come up much later, to ensure that the kind of speeches or reports that I have been discussing do not present those who make them with the risk of being prosecuted for an offence under Clause 1. The noble Baroness shakes her head, but I think that it is a real risk.
	I do not intend to press the amendment today. It may well be that I shall not press it on Report if I feel that it will not have the support of the House. If it is not to be the removal of subjective recklessness as a test, we do need something to ensure that what we would regard nowadays as politically acceptable speech is not criminalised. I fear that it would be. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 7 not moved.]

Lord Kingsland: moved Amendment No. 8:
	Page 1, line 14, at end insert "in the circumstances known to, or foreseen by, him"

Lord Kingsland: The content of this group of amendments, which has been much foreshadowed in today's debates in Committee on the Bill, concerns the objective test of recklessness.
	The noble Baroness said in our first debate this afternoon that the Government no longer intend to persist with the notion of objective recklessness. She expressed some reluctance in making that statement; and it was clear later on that it had been pressure, not only from this side of your Lordships' House but to some extent from the other side, that led the Government to make that reluctant concession. I reassure the noble Baroness that she has done the right thing.
	The noble Baroness drew our attention to a case of R v G. The leading judgment in that case, as your Lordships know, was made by the noble and learned Lord, Lord Bingham. On the question of the merits or otherwise of the objective test, in paragraph 33 of the judgment, the noble and learned Lord said:
	"It is neither moral nor just to convict a defendant . . . on the strength of what someone else would have apprehended if the defendant himself had no such apprehension".
	We on these Benches respectfully associate ourselves with that statement and believe that it says everything that needs to be said about the issue of objective recklessness. The noble Baroness has indicated that she will support Amendment No. 9 when it is put to the vote.
	I note that the noble Baroness said nothing about Amendment No. 8 except—intriguingly, if I understood her rightly—that the Government intend to table their own amendment to Clause 1(2)(b) on Report. Am I right in interpreting the noble Baroness in that way? I see that she is nodding, so I am right. I am much obliged.
	It follows that the noble Baroness must have some doubts about the way in which we have formulated Amendment No. 8. To help the noble Baroness in her cerebrations between Committee and Report stages, I draw her attention to paragraph 41 of the judgment of the noble and learned Lord, Lord Bingham, in which he sets out his definition of recklessness. The noble and learned Lord states:
	"A person acts recklessly within the meaning of Section 1 of the Criminal Damage Act 1971 with respect to
	(i) a circumstance when he is aware of a risk that it exists or will exist;
	(ii) a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk".
	Amendment No. 8 is intended—to use that frequently employed word in our deliberations today—to do no more or less than reflect exactly the definition that the noble and learned Lord, Lord Bingham, used in R v G. I shall be intrigued to see what the noble Baroness makes of the definition of subjective recklessness on Report. I beg to move.

Lord Thomas of Gresford: I support the amendment, and want to make a simple point. I have already quoted from another judgment in the case of G. Your Lordships should bear in mind the fact that 20 years passed between the case of Caldwell and G, during which the law took a wrong turn. In that 20 years recorders and judges throughout the country summed up to a jury on the basis of the law as wrongly laid down in Caldwell. It is inevitable that people went to prison who would not have gone to prison if the proper principles had been stated in the Caldwell case. For 20 years, the law took a wrong turn.
	I hear the Minister say that it is with the deepest regret that we move from the objective to the subjective test and that they are making a great concession. If they did not make that concession, it would have been a disgrace.

Baroness Scotland of Asthal: For the sake of clarity, we do not intend to move government amendments to Clause 1(2)(b); there is no need for them. However, we plan to table amendments to Clause 1(7) and Clause 2(9). I shall explain why.
	First, I tell the noble Lord, Lord Kingsland, that the whole issue of subjective/objective has exercised us all greatly. I know that it has exercised noble Lords sitting opposite for the same reason that it has exercised us. First, as I think I made plain in our earlier discussions, all Members of this House and indeed those of another place want to address the issue of terrorism with an appropriate degree of vigour. The question between us has been how we should do that and what is the best course to take. There are difficulties in taking a course that is too restrictive; there is also difficulty in taking a course that does not properly address the mischief with which we are now faced. That is and has been the dilemma. When I say that the Government have taken this course and that it is a large concession, that is because we understand how difficult it is to get the balance right. We understand that there is a consequence if the judgment that we collectively make about the subjective test proves to be incorrect or over-optimistic. That is why we have thought about this so keenly.
	I signalled earlier and am delighted to confirm that we will accept Amendment No. 9. I am grateful to the noble Lords, Lord Kingsland, Lord Henley and Lord Goodhart, and to the noble and learned Lord, Lord Cameron of Lochbroom. I hope that the noble Lord will be content to withdraw Amendment No. 8, which relates to the issue of objective versus subjective recklessness, in view of our movement on Amendment No. 9. We have particular objections to that amendment. The suggestion that it should be an offence for a person intentionally or knowingly to encourage terrorism only in circumstances known to or foreseen by him is on the face of it reasonable. However, it has an unforeseen side-effect. It means that it would not be an offence for a person intentionally—intentionally—or knowingly to encourage terrorism in circumstances unknown to or not foreseen by him, although that was his purpose and intent.
	We just ask rhetorically: why should that be the case? Why should someone be allowed intentionally or knowingly to encourage terrorism generally? If he intends to encourage terrorism or knows that his statement may encourage terrorism, the specific circumstances in which his statement may have an effect should not be relevant. The important thing should be to satisfy the test either of intention or of knowingly to have encouraged.
	Amendments Nos. 24, 25 and 37 would play a similar role to that of Amendment No. 6, which we have already considered, but in Clause 2. That clause makes it an offence to disseminate terrorist publications. The offence does not involve intent. That was quite deliberate. We want to give enforcement agencies the tools that they need to tackle a particular mischief: the dissemination of publications in contexts that mean they will either encourage terrorism or be of use to terrorists in practical ways. If the offence required intent, it would be virtually impossible to use, because booksellers, for example, would easily be able to say that they provided terrorist publications for financial gain. The Government therefore cannot support any move to make intent part of the offence.
	However, we listened carefully to the concerns expressed by your Lordships in the House and elsewhere. In particular, we listened carefully to my noble friend Lord Eatwell, who has been engaged in this matter very constructively and had some helpful conversations with my right honourable friend the Home Secretary. My noble friend's concerns were echoed by several other noble Lords who have been intimately involved in academic work and libraries—not least the noble Baroness, Lady Williams, whom I see in her place, and my noble friend Lord Parekh. Issues concerning librarians concerned my noble friend Lord Eatwell and others. He argued strongly for safeguards in regard to that offence and, like other noble Lords, wanted to ensure that appropriate protection was in place. In order to give my noble friends and other Members of the Committee the reassurance that they seek, the Government propose to change that offence in a very important way. The core element of the offence will remain the same, but we will seek to change the defences available to those who may be charged with this offence.
	At present, Clause 2(8) provides an obvious defence for libraries. It states that it is a defence for a person charged with the offence to show:
	"that he had not examined the publication . . . had no reasonable grounds for suspecting that it was a terrorist publication",
	and did not endorse the matter in the publication that made it a terrorist publication. I should clarify for the Committee's benefit that merely collecting publications—as a copyright library must—does not mean that they will be regarded as endorsing the publications. "Endorse" in the Bill is to be understood in the commonly accepted sense. I should also stress that the word "examine" is to be understood as referring to the sort of exercise that would reveal any reasonable grounds for the purposes of Clause 2(8)(b).
	However, since many of your Lordships have argued that Clause 2(8) does not provide a sufficient defence for librarians and others, we propose to extend the defence in Clause 2(9). At present, Clause 2(9) is restricted to those who disseminate terrorist publications through an electronic service. We intend to extend that defence so that it can apply to everyone who might otherwise have been liable under that offence. That will mirror the change we intend to make to Clause 1(7), which I have already explained in my earlier general comments.
	That change will mean that, in the case of publications that encourage terrorism, it will be a defence for a person charged with the offence to show that the publication did not express his views and that it was clear it did not; or, in the case of publications that provide material of use to terrorists, that the person did not provide the material with the intention of it being of use to terrorists.
	There can be no question but that that defence should be available to all legitimate librarians, academics and booksellers. The defence would be restricted to them. It would not be extended to others seeking to flout the law and encourage or facilitate terrorism. We think that this change will address all the remaining concerns over Clause 2.

Lord Elton: To make it easier for amateurs like myself, will the Minister say whether she means that the defences will be extended from those listed in Clause 2(1)(a) to all those listed between Clause 2(1)(a) and Clause 2(1)(f)?

Baroness Scotland of Asthal: Yes, because at the moment Clause 2 is restricted to a narrow group. We intend, through the amendments we are making, to remove that restriction so that it could be of general application. Clause 2(9) provides that:
	"In proceedings against a person for an offence under this section in respect of any conduct falling within subsection (1)(a) to (f) it is a defence for him to show",
	and then it sets out, in paragraphs (a) to (d), the extent to which they are able to take advantage of those defences. Clause 2(9) will then be of general application, so that academics, librarians and others will be able to fall within these provisions.

Baroness Williams of Crosby: Perhaps I may press the Minister a little further, because what she said is obviously of great interest to academics and libraries. The Minister will appreciate that the Bill, as it stands, is almost certainly unworkable for those libraries that have collections of literally tens of millions of items. To take one example, the British Library acquires 1.5 million new items every year. It cannot be expected to go through them all. I took her point about deposit libraries, but this is a slight distinction because it will apply to the whole public library system.
	Also, in a situation where it is literally impossible for those responsible for collections to know exactly what they contain—and, furthermore, where they have an obligation to increase those collections to cover all the areas where their customers and students may have legitimate interests—does this extension of subsection (9) in effect mean that a librarian or academic in pursuit of their normal tasks and responsibilities would not normally come within the purview of this law, unless there was some special example? I apologise for asking these rather banal questions, but it is important for the Committee to understand exactly where we are. I stumbled because I am inclined to say "a deliberate intention of", but the word "intent" is still one that the Government will not accept for Clause 2. Unless intent is brought into the picture somewhere along the line, can the Minister define a little more clearly the distinction between the librarian or academic who is simply doing their proper job, and a particular instance—which they do not know about—where someone who has either borrowed from them or listened to their lecture uses that information for terrorist purposes?

Lord Ahmed: I apologise for pursuing this a little further, but what about the bookshop that actually sells books? Dr Badawi recently gave me a book to look at on jihad, written by a scholar who promoted jihad. If bodies such as the Muslim College—it has given me this book to read and wants it analysed, as happens in organisations like colleges—have books available and, more importantly, if booksellers have books for sale in their shops which sometimes have verses in a religious context from the Koran and the Hadiz which may be translated or interpreted as encouraging terrorism, is that covered under the clause?

Lord Eatwell: I declare an interest as chairman of the British Library. I reflect with some pleasure on what the Minister has said, but also with some degree of confusion. She referred, on several occasions, to Clause 2(9), in which the concept of intent is already present in referring to those offences defined by subsection (2)(b), which is,
	"information of assistance in the commission or preparation",
	of terrorist acts. However, it does not contain the concept of intent with respect to subsection (2)(a), which is,
	"a direct or indirect encouragement or other inducement".
	Am I to understand that the concept of intent already embodied in Clause 2(9) is to be strengthened to cover subsection (2)(a)?

Baroness Scotland of Asthal: I shall take this slowly so that we may all follow it together. First, all those who collate information and publications for libraries such as the British Library in the way that the noble Baroness, Lady Williams, described will be able to continue what they have always done without fear of transgressing these provisions. The extension of Clause 2(9) to all those involved in that work will give them that assurance.
	Clause 2(9)(d), as my noble friend Lord Eatwell made clear, already provides,
	"that the conduct in relation to that publication, so far as it contained matter by reference to which it was a terrorist publication by virtue of subsection (2)(b)"—
	noble Lords will recall that that subsection is included—
	"was not intended by him to provide or make available assistance to any person in the commission or preparation of acts of terrorism".
	That covers all those who collect material for libraries, and those academics who produce material so that it can be properly debated. Noble Lords will recall that these provisions were previously restricted to those who disseminated information electronically. They did not extend to anyone else. By removing those provisions, we will have been responsible for a beneficial change.
	We will effectively remove Clause 2(9)(a). Clause 2(9)(b) and (c) concerns whether the publication encourages terrorism and the person endorses it. Paragraph (d) concerns whether the publication is of use to terrorists and whether the person intends it to be so used. Therefore, to answer my noble friend Lord Ahmed, a bookshop manager will not commit an offence unless it is clear that he endorsed the content of the books that he was selling.

Lord Goodhart: Does that mean that a bookseller who has been selling books on terrorism would be let off if he says, "I do not endorse these for a moment, but I thought it was a good way of making money"?

Baroness Scotland of Asthal: I do not think it would unless he was unaware of the content of the publications. If a librarian or other individual is unaware of the content of a publication and he has no reasonable grounds for suspecting that it encouraged terrorism or was wholly or mainly to be used by terrorists, he would have a defence under Clause 2(8). If, however, a bookseller was a deliberate purveyor of terrorist materials to people whom he reasonably expected were going to use them and he endorsed that in circumstances that made it clear that he was doing so, of course he could not take advantage of the provision. It would be very much a question of fact and the context of the circumstances. There would be an evidential burden—

The Earl of Onslow: How is a bookseller to know, when someone walks into his bookshop, whether the bloke is a terrorist, wants to be a terrorist or is not a terrorist? Is he to judge someone by whether he is wearing a shamag around his head and asks for a copy of a certain book? Should the bookseller automatically assume that that person is a terrorist?

Baroness Scotland of Asthal: No. It would be clear from the circumstances that the ordinary, average bookseller one has in mind would not endorse any act of terrorism. It would also be clear that the articles were not being purveyed to promote terrorism. However, there are other circumstances that we have had indications of where material is gathered together. All of it is of a terrorist nature, explaining how to construct bombs, how to target people and details on a whole set of nefarious practices. The circumstances under which such material is sold make it clear that it is for a restricted audience. Perhaps the material is stored at the back of the shop. All these things are evidential—

The Earl of Onslow: I understand that absolutely, and I have read in the newspapers of anecdotal evidence that certain shops concentrate on how to blow up this, that and a third thing—setting aside that all this information is available on the Internet. But surely there will be a border area. For all I know, such books may be available in the Harrods bookshop or in Waterstone's. Are we going to send Mr al Fayed off to nick for promoting terrorism? I see that the noble Baroness grins in anticipation, but that is another story altogether.

Baroness Scotland of Asthal: It really does not matter what the customer looks like. What will matter is whether the bookseller says in his defence, "I am absolutely clear that I did not endorse the material, irrespective of what the customer looked like. I had nothing to do with it. I was simply providing a book for sale among all the other books that I have available for sale". Whether the bookseller is able to satisfy everyone that that was the case will depend heavily on the evidence presented and the context. I am sure that the British Library, Waterstone's and the ordinary bookseller will have no difficulty in satisfying the requirements. Indeed, it is unlikely that anyone seeking to investigate such matters would pursue a prosecution of that kind.

Lord Kingsland: This group of amendments is concerned with one issue only, and that is objective recklessness in Clause 1. We appear to have launched ourselves into Clause 2. What the noble Baroness has said will be extremely important when the Committee comes to debate Clause 2, but I respectfully suggest to noble Lords that, having heard the noble Baroness, we should wait until we get to that clause so that we can put her words into the context of the amendments we have tabled to it. If not, we are in danger of discussing government amendments to a text that we ourselves intend to amend, but have not yet discussed the details of those amendments.
	This may be an appropriate moment to bring this part of the debate to a close. I thank the noble Baroness for what she said on Amendment No. 9. I listened carefully to what she said on Amendment No. 8. The noble and learned Lord, Lord Bingham, has defined recklessness in the context of the Criminal Damage Act 1971. If I have understood the noble Baroness correctly, she has said that, for the kind of offence in the Bill, particularly when talking about terrorism in its generality rather than in relation to a certain act, the way in which the noble and learned Lord formulated the definition of recklessness for the Criminal Damage Act 1971 might not be appropriate for the offences as defined in this Bill.
	I understand exactly what the noble Baroness has said. I shall look at the issue before deciding what to do about this amendment on Report. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Kingsland: moved Amendment No. 9:
	Page 1, line 15, leave out subsection (3).
	On Question, amendment agreed to.

Lord Bassam of Brighton: This may be an appropriate moment to resume the House in order to take the Statement on the local government finance settlement. I therefore beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.
	House resumed.

Local Government Finance

Baroness Andrews: My Lords, with the leave of the House, I shall repeat a Statement about local authority revenue finance for England in 2006–07 and 2007–08 made earlier today in another place by my honourable friend the Minister of State for Local Government. The Statement is as follows:
	"Sensible planning for service delivery needs a stable and predictable funding environment. Freezes on grant distribution changes have helped. But the time has come to go further and give councils firm forward financial allocations. There is no reason why councils cannot now provide similar certainty for their local taxpayers when setting their council tax for 2006–07 by providing an indicative council tax for 2007–08.
	"To give councils as complete a picture as possible of forward financial allocations, I am announcing today for the two years 2006–07 and 2007–08 allocations of formula grant and grant for the Supporting People programme. The Government will also publish by local authority a table of allocations of all the major revenue grants that can be allocated in advance, including the Neighbourhood Renewal Fund, which gives indicative allocations of £525 million for 2006–07 and £525 million for 2007–08 for the 86 most deprived local authority areas in England. By the end of this week we expect that the vast majority of individual specific grant allocations will be announced to local authorities. The only grants that cannot be announced at this stage will either be performance-led or data-driven in their nature.
	"My right honourable friend the Minister for Schools will shortly announce the provisional allocations to authorities of Dedicated Schools Grant; noble Lords should bear in mind that these allocations need to be added to those I am announcing today to give a fuller picture of the above-inflation funding going to authorities with education and social services responsibilities.
	"With the next spending review period we will move to give three years of grant allocations to local government. It is also high time we overhauled the system we use to distribute the formula grant. For over 20 years successive governments have used a system based on notional figures for spending and local taxation. In the 1990s, the government described the old Standard Spending Assessments as,
	'intended to represent the amount which it would be appropriate for the receiving authority to calculate as its budget requirement'.
	But we no longer take that view. The formula is simply a means of distributing government grant. Notional spending and taxation figures are nonetheless still being misunderstood and misused for a variety of purposes, such as spending or tax targets, for which they were neither intended nor suitable. Such notional figures get in the way of sensible budget setting, because councils treat them as targets or going rates, and get in the way of a more mature relationship with local government on doing business together. I propose a system that deals in an honest currency—cash grant—not fanciful assumptions about spending.
	"I accept that most responses to consultation were against our consultation proposals along these lines. However, the arguments supporting this position were not strong. Many stated that the new system would be more complex or use more judgment than the existing system; neither is the case. The new system will retain the strengths of the old. It will continue to take account of the relative needs of an area, and the relative ability of councils' areas to raise council tax. There will be an element of grant that is distributed on a 'per head' basis, and there will be a grant floor.
	"Total revenue grants to English local authorities will be £62.1 billion in 2006–07 and £65.1 billion in 2007–08, increases over the previous year of 4.5 per cent and 5 per cent respectively. Part of that increase is dedicated funding for schools, leaving formula grant for other services that will total £24.8 billion in 2006–07 and £25.6 billion in 2007–08, increases of 3 per cent and 8.8 per cent respectively. This means that by 2007–08 the increase in government grants for local services, since taking office, will be 39 per cent in real terms.
	"We have been working with local government over the past three years on possible changes to grant distribution formulae. We consulted publicly over the summer and I am publishing the summary of consultation responses today. Following that consultation, we propose a number of changes. The main drivers behind these are: updating, in particular by using 2001 census data in place of those from 1991; making the system more forward-looking by using projections of population and council tax base; and adapting to policy change.
	"The new formulae for personal social services for children and younger adults are based on extensive research and have a solid evidence base. This makes it clear that there will need to be substantial change to reflect the evidence on service provision and the very different social and demographic environment of the 2001 census. The grant system also takes account of councils' widely varying ability to raise council tax, depending on the council tax valuations of housing in their area. We propose to increase this resource equalisation because doing so will make the system fairer for those authorities with relatively low ability to raise council tax locally. I propose to adjust the grant distribution system to reflect the introduction of free off-peak bus travel for the over-60s and the disabled from next April. I shall do so by increasing in the district level environmental, protective and cultural services formula the weightings given to factors that reflect support for the disabled and the needs of areas where take-up is likely to be highest.
	"Grant floors—minimum guaranteed increases from one year to the next—are a permanent part of the system. Given the importance we attach to stability and predictability of grant, we shall be phasing in the larger changes this year with more than usual care. The changes to children's and younger adults' social services will be phased in with specific formula floors. Additionally, we propose grant floors for groups of authorities as follows. For 2006–07 the floors will be: 2 per cent for authorities with education and social services responsibilities, but this figure excludes the increase in schools funding, which will give all such authorities above-inflation increases in grant; 3.2 per cent for police authorities; 1.5 per cent for fire and rescue authorities, with this figure masking the help we give by phasing in recovery of the modernisation grant paid in 2004–05; and 3 per cent for shire district authorities.
	"For 2007–08, the grant floors will be: 2.7 per cent for authorities with education and social services responsibilities; 3.7 per cent for police authorities; 2.7 per cent for fire and rescue authorities; and 2.7 per cent for shire district authorities. Within each group of authorities, those above the floor will have their grant increase scaled back to pay for the floor. The proposed floor levels will mean a fairly narrow range of grant increases in 2006–07, with police authorities, in particular, all receiving approximately the average increase. For 2007–08 all authorities receive a grant increase at least in line with inflation, and more formula change will come through for most authorities.
	"I would now like to turn to the Supporting People programme, introduced in 2003 and now successfully providing support to over 1.2 million vulnerable people. I am pleased to announce a two-year settlement for this programme. The Supporting People grant allocation for 2006–07 will be £1.685 billion, which is a significant investment. I have also announced guaranteed minimum allocations for 2007–08 to enable authorities to plan their expenditure. Further, I am pleased to announce that authorities will be able to roll forward any savings from 2005–06 to 2006–07 in order to reinvest in the programme. This announcement brings stability to the sector and will enable authorities to work with support providers and voluntary sector and community groups to plan for the future. Building on the success of Supporting People, I recently launched a consultation on how the programme can be further improved and, following this consultation, I will announce next summer full allocations for 2007–08.
	"This settlement is good news for councils and council tax payers. We have been working closely with local authorities this year to identify the extent of the pressures they face up to 2007–08, and consider these actions necessary to mitigate those pressures. I am pleased to announce extra formula grant for the two years over and above previous plans of £305 million and £508 million for local government. We have also agreed with local government that we will jointly move forward on a number of fronts aimed at addressing the real pressures that councils face. This includes a continued commitment to the new burdens procedure, working with local government to assess the costs and savings of implementing new policies and funding the net costs. We will be strengthening the mechanisms to enforce the new burdens procedure. Further, I announced to this House on Friday our agreement that cost pressures arising from reinstatement of the 85-year rule in the local government pension scheme will not fall on taxpayers.
	"We are also aware of authorities' concerns over the costs of the new licensing scheme. I am pleased that we have been able to reassure the Local Government Association on this issue. My honourable friend the Minister for Creative Industries and Tourism has today reaffirmed the Government's undertaking that costs to local authorities from meeting their requirements under the new Licensing Act will be fully met by fees within the national fee regime, provided that they are incurred legitimately and efficiently. Local authorities will also benefit from the extra money coming in to local authority budgets through the Local Authority Business Growth Incentive scheme, and from the new top-up grants for police and fire and rescue pensions. These will help budget planning and, ultimately, the council tax payer.
	"We have provided a stable and predictable funding basis for local services. We expect local government to respond positively so far as council tax is concerned. Therefore, we expect to see average council tax increases of less than 5 per cent in each of the next two years. There is, following today's announcement, no excuse for excessive increases. Local government should be under no illusions: if there are excessive increases, we will take capping action, as we have over the past two years.
	"I am also announcing consultation on alternative notional amounts. The draft alternative notional amounts report sets out the proposed notional adjustments to local authorities' 2005–06 budget requirements, to help enable like-for-like comparisons with 2006–07 budget requirements for capping purposes. This is being issued today for consultation, to ensure that authorities know in advance of setting their budgets the budget requirement figure for 2005–06 that the Government will use when considering using capping powers.
	"The Government have provided another significant boost to local authorities with a financial package that is stable, predictable and adequate to meet the pressures local authorities face over the next two years while keeping council tax increases down to acceptable levels. I have placed copies of tables showing grant allocations and supporting documentation in the Vote Office and the Library of the House; full details are being made available for local authorities on our website. I look forward to receiving consultation responses and commend these proposals to the House".
	My Lords, that concludes the Statement.

Baroness Hanham: My Lords, I thank the Minister for repeating this Statement, and I thank the Government for making sure that the Statement was available in rather more time than we would normally have to read it. This Statement, in many ways, affects more people than all the rhetoric of the Chancellor of the Exchequer earlier this afternoon. I think all of us in this House value local government, and even the Government pay lip-service to that. The trouble is that the Government, despite what they say, will not allow local government to be local, and there is no sign of any change in the Statement.
	The Government have imposed new duties and have certainly not fully funded them. The latest relate to the absurd and unwanted 24-hour drinking. I welcome the indications in the Statement that more of the costs associated with that will be met in the fees-regime, although local authorities have already had to face substantial up-front costs. It is a bit like shutting the stable door. Will all the costs of appeals—and many, many appeals are now being made—be met by the Government or an allowance made for them? How will the Government precisely assess—as the Statement says they will—whether licensing costs are incurred legitimately and efficiently? The presumption with local government is that it is legitimate and that it tries to be efficient.
	I welcome the idea of a new burdens procedure—which involves working with local government to assess the costs of new burdens—but would it not be better if, instead of a new burdens procedure, we had fewer new burdens and therefore did not require the procedure? Council tax payers might then be a bit happier. As the Statement acknowledges that the Government have ignored most of the comments made to them in the consultation on the new finance regime, what faith can we have in these new procedures? What burdens does the Minister anticipate will fall on councils in the future on which these procedures presumably will be imposed?
	Can the Minister assure the House that the new grant system will not give central government even more opportunity to switch resources from year to year to suit central government's political priorities, which has certainly happened in the past? Will she say specifically how resource equalisation will operate under the new regime? Will the Minister explain the equity of the damping mechanism whereby those who receive grant above the floor will have it taken away to pay for the floor?
	Does the Minister understand my disappointment that there is no cull of CPA, inspection, best value and the other regimes in the Statement? The Government talk of "new localism" but run a "new inspectorism". Would not one way to have cut council tax have been to come here and announce a cull of such unnecessary bureaucracy? Where is the contribution from the Government and their agencies to all the justifiable talk of efficiencies being needed by local authorities? There is nothing in the Statement which gives us any comfort that any of that is likely to happen.
	Council tax has been forced up as a deliberate stealth tax by the Chancellor while local authorities are blamed for the result. No wonder the average council tax in England has ballooned from £689 in this Government's first year of office to £1,214 this year That is a rise of over 80 per cent when this year's planned increase is added. The Statement means that there will be yet more council tax rises—or service cuts—in the year ahead. Before today the Local Government Association said that there was a funding gap of £2.2 billion. The Statement refers to one-off grants of £300 million and £500 million over two years. That sounds to me like £800 million, which is a long way short of £2.2 billion. How much of that gap—the difference between £800 million and £2.2 billion—has been filled, and precisely how will it be filled?
	Can the Minister explain how much of the new development land tax—which is a classic old style Labour tax, even if recommended by Kate Barker—will go back to local authorities rather than to regions? I stress "rather than to regions" and include in that the Greater London Authority. Can the Minister give an undertaking that the Mayor of London will be capped if he proposes an increase in precept of above 5 per cent? Can she say whether the London boroughs will be either compensated for their current concessionary fare scheme or receive a grant towards it in the light of the Chancellor's announcement that there will be a universal scheme?
	Continuing council tax rises are inevitable. Indeed, the Chancellor is expecting council tax revenue to rise by 7.1 per cent in the coming year. The Statement refers to council tax rises of 5 per cent at the upper end of the average for the next two years. That means that the Government are planning on the assumption that council taxes will rise at nearly double the rate of inflation for the next two years, which is fairly tough news for those on pensions and fixed incomes.
	It is no wonder that we had earlier today the humiliation of the First Reading of a Bill to stop a revaluation of council tax—a Bill for which the Government legislated only last year. The impact of that, as the Government widely understand, will be disastrous for anyone involved with a house that has any value in it at all and, of course, it opens the doors to the official snoopers with their cameras. Council tax payers have had enough of what the Government are putting forward. The Statement, unfortunately, gives them more of the same.
	Can the Minister say when the Lyons report will now be received? How many more reviews of local government structures and finance are currently in train? Indeed, we have referred before to the Miliband review and I am sure that that will not be the only one. Can the Minister tell the House how the move away from notional amounts announced in the early part of the Statement relates to a consultation on continuing alternative notional amounts in relation to capping? Can she say whether there is any intention by the Government to pay more attention to that consultation than they did to the previous one?
	We welcome a move towards two-year and three-year planning. However, will the Minister acknowledge that it will be worth nothing if it takes place against a background of capricious policy change—such as the triple U-turn on local authority pensions—and in the context of a new grant regime that gives central politicians more power to dictate to local councils than ever before?

Baroness Hamwee: My Lords, I, too, thank the Minister for repeating the Statement. In view of my comments and questions, I say at the outset that I appreciate that the Statement was not of her making. I declare an interest as a member of the London Assembly, which has theoretical, if not very practical, powers to deal with the Mayor of London's budget.
	The Statement reads to me as highly centralising and, yet again, as reducing local discretion. It continues—perhaps even more harshly than in previous years—the capping regime. It also reads to me as very confusing. What now for the Lyons review? Will the Government—as I think they should—apologise to Sir Michael Lyons for the continual postponement of dealing with his review, and to local government for what I regard, quite frankly, as the Government's messing about.
	I was at a public meeting about 10 days ago—there were some 300 people there—and one of the subjects which was being discussed was the precept to be levied for the 2012 Olympics. The complaints were not about the cost of the Olympics but substantially about the costs to be incurred by pensioners. Their point was that council tax is an unfair way of raising money and there were many references to those on low incomes. The conclusion, I suspect, for many of those reading the Statement will be that the council tax is unfair and must be got rid of.
	To seek some answers to particular points which were raised, nobody could object to having a stable and predictable funding environment or to enabling local authorities to provide an indicative council tax on a rolling basis for future years. That needs adequate information. It is a very laudable aim and I wonder whether it will work. Do the Government intend to legislate to require this and would I be over-cynical in saying that I see it as something of a mechanism for transferring blame?
	The paragraphs regarding the various grants, by listing all the components, illustrate the complexity and the centralised nature of local government finance. For instance, to talk of allocations under the neighbourhood renewal fund immediately says it: not a local authority decision but an allocation. It seems that unless gearing is drastically reduced there cannot be certainty for the future in the way that this Statement suggests.
	The reference to doing business with local government in a "mature relationship" is again laudable, but to be followed immediately by the confession that the Government are going ahead with plans when the responses to their consultation were not in support of the Government does not seem to me to be a basis for a mature relationship. Could the Minister explain the psychology behind that? It seems to be a question of, "The kiddies in local government got it wrong, we know what's best". Can the Government give us an assurance that a mature relationship as they understand it includes dialogue?
	The figures for total revenue grants exclude the dedicated—the jargon has changed, it is not ring-fenced but dedicated—funding for schools, but do not deal with the inevitable impact on social care budgets. If you dedicate, or ring-fence, one of the two large budget heads, the other one is bound to be vulnerable.
	The noble Baroness, Lady Hanham, asked about resource equalisation, which again seems to be layering complexity on complexity and compounds the problem by performing a rather intricate dance around the area rather than actually addressing it. In dealing with free off-peak travel, where the grant distribution is to be adjusted, can the Minister give an assurance that an adjustment will not be a reduction in practice?
	With regard to grant floors I hope that the Government can also assure us—perhaps they can tell us what consultations they have had—that the figures given for floors will not be met by either despair or hollow laughter, given that they seem to be very low. In relation to the future indicators of all authorities for 2007–08 receiving a grant increase at least in line with inflation, which inflation indicator will be used? We have many and we are accustomed to inflation in local government being higher than what the general public might regard as the inflation level—often for very understandable reasons.
	As this whole area deals, among others, with police and fire authorities, I add to the pleas that I know are being made—I have made them with another hat on—by the London Metropolitan Police Authority and the London Fire and Emergency Planning Authority, whose needs are in part governed by their national responsibilities, which are not, in our view, wholly recognised by the grant made available from central government.
	I should not take too much longer but I would be grateful if the Minister could tell us whether, in working "closely with local authorities", to quote the Statement, the Government have come to an agreement with the Local Government Association and that the black hole of £2.2 billion, which the Minister has already mentioned, is an agreed figure? Can she also tell us whether the Government agree with the Local Government Association that local authorities have done pretty well when it comes to applying Gershon efficiencies?
	The Minister referred to the costs of the new licensing scheme. I thought that that was supposed to be revenue neutral—I seem to remember some assurances being given in this House during the passage of the Bill. But my heart sinks a little at the explanation that the fees will be met provided they are incurred legitimately and efficiently. Are central government going to check on all that?
	An inevitably superficial reading of the Statement as I have had to give it, and an inevitably abbreviated report, cannot amount to real scrutiny of a difficult and complex area. We have an annual formula, not one applied just by the ODPM. It is a ritual with increasingly complex rules. I have said of other issues that it is not the issue itself which is the only thing that concerns me. Here, too, I fear that the public will see this as the bureaucrats playing with jargon, with figures, and not addressing what it really is like to receive a council tax bill, or indeed any tax bill because I appreciate that most local funding comes out of taxation raised through other mechanisms. People may well think that this is what bureaucrats thrive on, but I do not think that anybody in the Chamber this evening would say that the politicians thrive on it. Perhaps only those who purvey headache pills in the vicinity of town halls will thrive on this Statement.

Baroness Andrews: My Lords, I have technically two minutes in which to answer a lot of questions. I will not be able to answer very many so allow me to go at a fair lick.
	I shall start with what I can welcome, which is the welcome that noble Lords have given to the three-year funding and the stability that that implies. I take issue with the notion of centralisation, which both noble Baronesses raised. With the cash arrangement that we now have we will be working with local government just as we always have, to share judgment and to meet real needs. There is no change in that. As the noble Baronesses know, in our local vision we very much respect the importance of the discretion of local government, as indeed did the dialogue that we had with local government in the framing of this settlement in front of us.
	I will take the questions raised in turn. With regard to licensing, for example, I can tell the noble Baroness, Lady Hanham, that the DCMS has confirmed that the costs incurred by local authorities in meeting their requirements under the new Licensing Act, provided that they have been incurred legitimately, will be fully met. There should be no liability there.
	Resource equalisation—which is a means of introducing fairness into the system—will operate in the same way as before. More account will be taken of relative ability to raise council tax by ensuring the total within the grant system that relates to resource.
	The noble Baroness, Lady Hanham, raised the question of damping. This is a part of the historic system which is there to equalise. We are pleased that this year for the first time we have been able to allow a floor within the system for the protection of social services. The education grant is, of course, on top of that.
	The noble Baroness spoke about reducing unnecessary inspection. We agree with that up to a point; we have made some progress with lighter touch inspections for education. As we look at the inspection regime, we can look at the burden as it falls.
	On the ballooning of council tax, I do not accept the definition. We have increased funding for local authorities by 39 per cent since 1997—that would be the figure by 2007–08. Both noble Baronesses referred to the £2.2 billion which was posited by the Local Government Association. We said at the time that we did not accept that for a number of reasons, not least because some of the elements were not costed, such as the minimum fostering allowance. We have £305 million this year and an additional package to work with councils through the new burdens and to look at the set-up problems they have discussed with us. We accept the additional pressures that the noble Baroness mentioned. Things such as waste and an ageing population require us to think constructively with our partners—and it is a partnership. We have to get it right.
	I can assure the noble Baroness, just as my colleague did in the other place, that we expect the majority of the planning gain settlement to go to local government for funding infrastructure—the crucial infrastructure we need if we are to be able to meet our ambitions to house more people in the future than we have been able to in the past. That is being driven by demographic pressure, not just in the south-east but in other parts of the country as well.
	The noble Baronesses referred to the council tax. The figure of 5 per cent is by no means a going rate. It is a statement of the implications. Last year we set 5 per cent and most councils came in at under 4.1 per cent.
	My understanding is that the money that has been made available for London Buses should be fine to meet the costs involved.
	We asked Sir Michael Lyons to review council tax funding with the intention of making a better and fairer system. We have not postponed it but have invited him to look at the wider context by looking at the form and function of local authorities. He will report at the end of 2006, but we can expect an interim report very shortly.
	I believe I have covered most of the questions raised by the noble Baroness, Lady Hanham. On the Olympics, the noble Baroness, Lady Hamwee, raised the point about elderly pensioners. I agree with her. We have to do more to make sure that the council tax benefit reaches the people who are entitled to it. We are looking at ways of doing that; we have introduced one change this year which I think will be successful. I will have to write to the noble Baroness about her other points.

Baroness Hanham: My Lords, before we proceed, I have to tell the House that I forgot to declare an interest.

Lord Bassam of Brighton: My Lords, the Back Benches have to have their 20 minutes as well.

Baroness Hanham: My Lords, I only wanted to say that I had not declared an interest.

Lord Greaves: My Lords, I think we have plenty of time for Back-Bench questions. If I ask the Minister a very general question about whether she thinks that this is a fair and reasonable settlement, she might be able to use her reply to answer one or two more of the Front-Bench questions that were asked.
	I declare an interest as a member of Pendle Borough Council, and I looked with interest at the tables. At the end of the Statement, the Minister referred to another significant boost to local authorities. Having looked at quite a few of the tables, in so far as I understand them, I think that when councils begin to look at them seriously tomorrow, a lot of them will have a cold shock going down the spine when they see their allocation. Many places will find it very difficult.
	On floors and ceilings, let me briefly say what has happened in Pendle. I am not making a special interest case just for Pendle; it also applies to quite a lot of other ordinary shire districts—small authorities—for whom these sums are important, such as Hyndburn, Wyre, the Cumbrian coast authorities, and a number of others.

Lord Bassam of Brighton: My Lords, this is supposedly a time for Back-Bench questions. If the noble Lord takes a long time asking his question, others will not have the opportunity to do so.

Lord Greaves: I am sorry, my Lords, I should have sat down. I will be brief.
	Does the Minister realise that in the past three years, since the last grant settlement, although ceilings have been officially abolished, the floors and ceilings have not unwound? In my authority, £1.8 million has not been paid over three years which the Government, on their own grant settlement figures, said the authority deserved. If I understand the figures correctly, it will be £2.25 million after the new settlement. Will the Minister give an undertaking that over the next two or three years, on the basis of the new settlement, the figures will unwind properly and authorities throughout the country will get the money the Government say they deserve rather than an amount which is constrained by keeping the floors and having to have the cross-subsidies within them? Does she accept that the figures for the breakdown of formula grant for 2006–07 show a huge cross-subsidy from metropolitan districts, particularly in the north of England and the west midlands, to London and the south-east? That simply cannot be sustained if the system is to be seen to be fair.

Baroness Andrews: My Lords, the noble Lord asks whether I think this is a fair and a good settlement. Yes, I do. We have worked very closely with our partners in local government on the changing needs of the community. That is reflected by the way in which we have looked again at the costs relating to children and young adults, updating our figures to make sure that they reflect real needs so that we can proceed on a much more secure footing.
	I must take issue with the noble Lord. There has not been a redistribution to London and the south-east. It is the other way round. The figures show that outside London, the increases are high collectively. I can write to him about that. Likewise, of all the authorities, the shire districts are getting the highest increases.
	I wish I could say something helpful to the noble Lord about Pendle. I do not know the situation there and will have to write to him about that. However, over the next few months, we expect local authorities up and down the country to come to the Office of the Deputy Prime Minister and discuss their allocations with us. They come every year, and I shall look out for the delegation from Pendle in the light of what the noble Lord said. We will certainly have those discussions. There are always people who are and seem better off, but we are in the business of promoting equity in the way we do things.

Lord Shutt of Greetland: My Lords, I have been having a look at the documents as the Minister has been speaking. Today every local authority is having a rate fixing or council tax meeting. Does she accept that, in effect, the die is cast this very day and that every local authority knows that the figure will be in the region of 5 per cent?
	I am not quite clear about this business of damping. As I understand it, if I am to put the damper on the fire, I put the old ash back on and hold it back. But if damping is going on, somebody else is shovelling on the coal. It looks to me, from this sheet, that London and the south-east are shovelling on the coal and provincial Britain is doing the damping. Will the Minister confirm that provincial Britain will have to pay for the Olympics? Is that what the papers are telling us?
	The documents warrant a very serious study—some pages are numbered and some are not. Annex C on page 49 covers the council tax base for revenue support grant purposes and contains a splendid formula. Is there any way in which the Government could simplify this?

Baroness Andrews: My Lords, would that we could. We try to make it as clear as possible. One of the reasons for our moving to a cash basis from the old formula of spending shares—which nobody understood, just as they did not understand the standard spending assessment—is to make it a little more real and accessible to people.
	In response to the noble Lord's point about council tax, the Government do not set council tax. Local authorities set council tax. As I said, 5 per cent is not a going rate. We said last year that we wanted to see an average increase of less than 5 per cent and the average increase was 4.1 per cent.
	On the noble Lord's point about London, I can assure him that the money is not going to pay for the London Olympics. In 2006–07, the south-east will receive 3 per cent more grant while the north-east and the north-west will receive 2.8 per cent. I would have thought that that would warm the cockles of the noble Lord's heart. All authorities are guaranteed not to lose grant compared with the previous year.
	I take the noble Lord's point about trying to make the system clearer. As a new Minister, I wish I could have achieved that for myself, but we will get there in the end. It is something which governments should always strive to do.

Baroness Hanham: My Lords, I omitted to declare an interest as a member of a local authority when I was speaking. I need to do so now.

Lord Bassam of Brighton: My Lords, before the noble Lord, Lord Rooker, takes to his feet, it is only fair and right that I indicate how long we have for the supper break. I propose that the House reconvene for the Committee stage of the Terrorism Bill no later than 8.41 pm.

Legal Aid (Northern Ireland) Order 2005

Lord Rooker: rose to move, That the draft order laid before the House on 15 November be approved.

Lord Rooker: My Lords, the draft Legal Aid (Northern Ireland) Order 2005 amends the existing legal aid legislation in Northern Ireland by taking a power to enable the Lord Chancellor to direct or authorise funding in exceptional cases. This power is required because the legislation governing legal aid in Northern Ireland, pending full implementation of legal aid reform, is a restrictive and inflexible 1981 order which does not have an exceptional grant power. As such, the draft order seeks to ensure that exceptional funding is available in Northern Ireland, as it is in England and Wales, and that the Lord Chancellor can, in appropriate circumstances, exercise powers to compensate for the inflexibility of the 1981 order.
	Your Lordships may be aware that the Lord Chancellor had previously sought to address this issue by bringing forward a transitional exceptional grant power under the Access to Justice (Northern Ireland) Order 2003. That transitional exceptional grant power worked well, providing important assistance in numerous cases, particularly in relation to inquests. However, as your Lordships may be aware, that transitional power was successfully challenged by way of judicial review by one of the defendants to the Omagh civil action. The defendant successfully challenged the funding provided to the Omagh families.
	The draft order essentially replicates the exceptional grant provision set out in the now-repealed Section 76 of the Justice (Northern Ireland) Act 2002. Under the order, the Lord Chancellor can direct the Northern Ireland Legal Services Commission to fund categories of cases or, in response to a request from the commission, authorise funding for an individual case which falls outside the scope of the ordinary legal aid scheme. I repeat, this reflects the current position in England and Wales.
	However, the draft order also enables the Lord Chancellor, in response to a request by the commission, to authorise funding generically or in respect of individual cases which are within the scope of the ordinary legal aid scheme. Your Lordships will note that this particular power is intended to compensate for the inflexibility of the powers currently available under the governing 1981 order. It is a transitional provision, until such time as the full range of powers under the Access to Justice Order becomes available to the commission and the Lord Chancellor.
	The draft guidance, which I have made available to your Lordships' House, indicates that this power could be used to compensate for the systemic impediments within the 1981 order or to fund an individual, wholly exceptional case which is technically within the scope of the ordinary legal aid scheme and yet cannot secure funding. The Lord Chancellor would consider exercising this power only if the commission requested funding in a case where there were compelling reasons why it would be inappropriate simply to apply the rigid test set in the 1981 order.
	Your Lordships may consider that a practical example of the use of this power would be to provide funding to those bringing the Omagh civil action. I cannot enter the realms of speculation, but your Lordships will note that under the terms of the order the issue of funding for the Omagh civil action or any other action is a matter in the first instance for the commission to determine should an application for legal aid be lodged. All I can say on behalf of the Lord Chancellor is that he would consider any request submitted by the commission on the merits of the case and against the general principles set out in the draft guidance. I commend the order to the House. I beg to move.

Moved, That the draft order laid before the House on 15 November be approved.—(Lord Rooker.)

Baroness Harris of Richmond: My Lords, I was delighted to hear the Minister say that the Lord Chancellor will consider the Omagh case. I understand that it is not feasible to refer to it at the moment, but I hope that he will listen very carefully to what the people of Omagh have to say about it.
	I am grateful to the Minister for bringing this order to the House. I assure him that we on these Benches fully support it. Since the Access to Justice Act 1999, we have had a much better system of providing legal aid in England and Wales than has been the case in Northern Ireland. This order is timely in addressing that anomaly.
	Granting legal aid in exceptional circumstances will bring Northern Ireland within Articles 2 and 6 of the European Convention on Human Rights. I have just two questions for the Minister. Are there restrictions on legal aid for civil cases? It seems that use of legal aid in criminal cases will inevitably use up a lot of specified money. Will there be any moves to redress the balance between legal aid for civil and legal aid for criminal cases if that proves to be necessary?

Lord Kingsland: My Lords, I share the noble Baroness's pleasure in hearing that the Lord Chancellor will, in the context of the new powers that this order gives, be prepared to consider the Omagh case. Naturally, I hope that he will consider it favourably, although I understand from the Minister that no undertakings can be given in this respect until the moment comes when the Lord Chancellor has to exercise his discretion.
	As the Minister explained, the order grants a power to enable the Lord Chancellor to grant legal aid in exceptional circumstances. As he also explained, the existing statutory basis for the provision of legal aid in Northern Ireland is the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981. That order contained no power to grant exceptional legal aid. It seemed that the Lord Chancellor had attempted to commence, in transitional form, the power in question in an earlier 2003 order. This order replaces the transitional mechanism. In as much as it simply provides a new statutory basis for the existing exceptional grant scheme, I support it.

Lord Rooker: My Lords, I am grateful for the supportive comments. The order—which is in effect transitional—is coming forward only because of the remarks of the judge in the case which I referred to earlier, who said that things were unsatisfactory and something needed to be done. Work is going on to bring in the full Monty, if I can put it that way, of the procedures that have already gone through the House, but it is necessary to do this now for lots of purposes.
	As I said, it would be wrong of me to speculate about particular cases, although I have only referred to one by name and title. As I also said, the Lord Chancellor would have to look first of all at any determination from the commission, because that is where the applications would need to be made.
	I assure the noble Baroness that in Northern Ireland at the present time there is no cap on the civil legal aid budget, so there is no cross-over between criminal and civil. There is ongoing reform of legal aid in Northern Ireland. Criminal remuneration is being reformed, and there is a programme of work in hand to reform civil remuneration as well.
	That said, all I can say to the noble Lord and the noble Baroness is, thank you very much for the support.

On Question, Motion agreed to.

Baroness Farrington of Ribbleton: My Lords, I beg to move that the House do now adjourn during pleasure until 8.41.

Moved accordingly, and, on Question, Motion agreed to.
	[The Sitting was suspended from 7.51 to 8.41 pm.]

Terrorism Bill

House again in Committee on Clause 1.

Lord Lloyd of Berwick: moved Amendment No. 10:
	Page 2, line 1, leave out subsection (4).

Lord Lloyd of Berwick: This brings us to what may be the one of the most contentious provisions in the Bill. It may help to start by looking at the history of the clause. The glorification offence hit the headlines when the Prime Minister held his press conference on 5 August shortly before going on holiday, but it had already figured in the Labour Party manifesto. The relevant paragraph contains a brief mention of glorification but it is not informative and does not say what is meant by glorification, nor how it could be enforced as a criminal offence. That may explain why, when drafting the Bill, the draftsmen found it so difficult to express it in terms that any of us can understand. This provision was originally a separate clause—Clause 2—but the Home Secretary abandoned that at an early stage and transferred the glorification provision to what I call a deeming provision in Clause 1(4) because he said that that would be an improvement.
	Almost everyone who spoke at Second Reading about glorification, condemned the clause because it was either incomprehensible to the man in the street or unenforceable or both. Those who spoke to that effect included the noble and learned Lord, Lord Morris of Aberavon, and the noble Lords, Lord Thomas of Gresford, Lord Kingsland, Lord Hurd, Lord Soley, Lord Stratford, Lord Judd, Lord Griffiths of Burry Port, Lord Ahmed and the noble Baroness, Lady Sharp. Nobody who I am aware of spoke in favour of glorification as an offence or the basis of an offence, certainly as drafted. The noble Lord, Lord Carlile, did not support it and the noble Baroness, Lady Scotland, did not deal with it in her reply. We do not have the advantage of her view but we do have the advantage of her presence.
	Let me describe what I think the clause means. Subsections (1) and (2) make it an offence to publish a statement with the requisite mental element, whatever that may turn out to be, which is likely to be understood by members of the public as an encouragement to commit acts of terrorism. Under Clause 20(3) "public" includes members of the public at home or abroad. So guilt will or may depend upon how a statement is likely to be understood in, for example, Palestine or Pakistan, because they are included under the term "members of the public". I do not know how a jury is supposed to form a view about that.
	Under Clause 1(4), which is the deeming provision, a statement celebrating the achievements of, for example, the African National Congress in South Africa or the rebels in Chechnya, is deemed to be likely to be understood as an encouragement to commit terrorist acts in, say, Palestine, if potential terrorists there could reasonably be expected to infer that they should do likewise. I have put that in as simple language as I can, but the very involved language of Clause 1(4) seems to amount to that. That immediately prompts the question: how on earth can anyone know what a potential terrorist in Palestine, or in England, is likely to infer from what is stated? How can anyone know what a potential terrorist would reasonably infer, when, almost by definition, terrorists are not reasonable people?
	Making an offence depend on something which is almost a contradiction in terms—what would be understood by a terrorist in Palestine—is not a proper basis for an offence committed in England. I cannot imagine that any jury would convict in the circumstances that are put before us. Juries do not like these catch-all offences, as we saw the other day in the case of the couple who failed to inform the police about a member of their family who turned out to have been a suicide bomber. Quite rightly, the jury acquitted them. That should never have been an offence, any more than this should be an offence, as it is currently drafted or, indeed, as it could be drafted. It could be drafted more clearly, but it could not be drafted in a way that would make it a suitable subject for a criminal offence under our law.
	In the unlikely event that a jury convicted someone under Clause 1(4), what would be the chances of that conviction being upheld? They would be minimal. The subsection would fail on two separate grounds, both of which were explained earlier by the noble Lord, Lord Lester of Herne Hill. It would fail the test of legal certainty, because people must know where they stand, which is the principle that was explained clearly by the noble Lord, Lord Kingsland, at Second Reading. The subsection would also fail on the ground that it was an unjustifiable restriction on freedom of speech—a principle that still stands for something in this country. It is clearly a restriction on freedom of speech and it is difficult to believe that any court would hold that Clause 1(4) was a proportionate response to the threat of terrorism that we face, although that threat is serious. So it would be held inevitably that Clause 1(4) is not a necessary provision in a democratic society.
	It would of course be some years before that matter were tested in any court, but in the end the result would be the same as it was in the Belmarsh case. Clause 1(4) would be held to be incompatible with the provisions of the convention, and, in particular, with Article 10.2—and another suspect would have been detained in prison wrongfully in the mean time. I earnestly hope that the Government will look again at the suggested basis of an offence of glorification because it just does not add up. I beg to move.

Lord Geddes: Before calling Amendment No. 10, I should have advised the Committee that if it is not agreed to I will not be able to call Amendment No. 11 due to pre-emption. I apologise to the Committee for that omission.

Lord Goodhart: My name is also on this amendment and I would like to give strong support to the noble and learned Lord, Lord Lloyd of Berwick. When the Government decided to merge an originally separate offence of glorification into the wider offence of encouragement, the word "glorification" became pointless. The definition of terrorism is so wide that it includes many events that have been glorified for years, and even centuries—for example, the American War of Independence, which involved a violent struggle by a number of people against a lawful government. So glorification of past acts, which may have fallen within the definition of terrorism, are not automatically an offence.
	It was originally proposed that there should be an exemption for acts more than 20 years old, which would be subject to a black list of acts which were more than 20 years old but which the Home Secretary thought still ought to be treated as being beyond the pale. That particular proposal I think sank under its own absurdity. So, glorification as a definition of terrorism is not automatically an offence.
	Glorification remains permissible, unless it carries the inference that the conduct being glorified should be emulated. But once you find someone saying that you should emulate what happened on 9/11 or 7/7, they are plainly encouraging terrorism in any meaningful sense of the word. Therefore, reference to glorification, if coupled with a requirement that the conduct being glorified is to be emulated, adds nothing because it is already within the ordinary definition of encouragement. I believe, frankly, that it is only being included in the Bill in order to save the Government's face, as the Labour Party manifesto promised to make glorification of terrorism an offence. I recall that the Labour Party also promised to make condoning terrorism an offence, but that promise has widely been forgotten.
	All subsection (4) does is to make the Bill less comprehensible. It is already far too elaborate. This is a wholly unnecessary bell and whistle on what is already an overcomplicated Bill, and, frankly, Clause 4 should be removed to the knacker's yard—if I may mix my metaphors.

The Earl of Onslow: I would like to glorify the Spaniards who helped the Duke of Wellington evict the French from the Peninsular in 1808 to 1814. I think I would like to glorify the French Resistance who resisted the Germans in 1940. I think I would like to glorify those brave Afghans who resisted the Russians in the 1970s and 1980s. I think I would like to glorify those from East Timor who resisted the Indonesian troops.
	The history of what people call terrorism and what people call freedom fighters always depends upon which side you are. In all civil wars and resistances, extremely nasty things happen. They always get called "terrorists" by the authorities, and "guerrillas" by the freedom fighters. I quite accept, as one of my noble friends said earlier, that when you have a constitutional way out, armed resistance becomes unjustifiable. Where there is no constitutional way out, however, guerrilla warfare, resistance behind the lines, blowing people up, blowing bridges up, ambushing sentries, killing Heydrich in Prague—which the Nazis called a terrorist act—all of those things are eminently praiseworthy.
	Am I going to go to prison, or be prosecuted, because I say that those people were glorious patriots? The noble Lord, Lord Bassam of Brighton, shakes his head, but that is what the Bill says, and it says it loud and clear. This has been pointed out before, and it will be pointed out again. We have surely got all the powers we need to prosecute people for doing naughty things. We do not actually need this Bill; it is a piece of flannel. I accept that I will be accused of making a Second Reading speech on that last point.
	On a complete side issue, it is an enormous pity that the noble Baroness, Lady Scotland of Asthal, does not have either the Attorney-General or the Lord Chancellor to help her. In spite of the fact that she is doing jolly well, she is not doing well enough to persuade us, and a lot of the rest of the Committee, to go along with some of this ill-thought-out waffle and muddle with which the Government are presenting us today.

Lord Ahmed: I too support the noble and learned Lord, Lord Lloyd of Berwick. When they made this commitment, the Government probably had in mind those who were rather naively celebrating the people involved in 9/11. I think they were criminals. However, I have seen no evidence of anybody celebrating the terrible and evil events of 7 July.
	On many occasions, we hear this myth that somehow these Muslims are told that, if they get involved in terrorism and suicide bombing, there will be 72 virgins waiting for them in heaven. I assure you, the people who say this normally want to insult and demonise Islam and the Muslims. There is no such thing as a normal life in Islam in the heavens. The concept of angels—of pure people in heaven—runs across all religions and the alternative view is spread only to insult people of the Islamic faith.
	However, this glorification, as mentioned earlier by noble Lords, is a concept that comes not only from the days of Guy Fawkes, who tried to blow up this very building; we still celebrate that. There are many others in our history who have been mentioned: Nelson Mandela, Prime Minister Begin, George Washington and others. There is also a concept of martyrdom in all religions, however. Certainly, as a Muslim, there is a concept of Shohada: those who have given their lives for good causes.
	As a noble Lord reminded me earlier, JF Kennedy said that if you make change impossible, you make violent change inevitable. We have seen that in history and even today, in the cases of East Timor, Chechnya, Kashmir and many other places. I therefore think this glorification of a so-called terrorist is unnecessary. I will support the noble and learned Lord, Lord Lloyd, if he wishes to divide the House at some stage on this issue.

Lord Judd: When the noble Earl put forward his list of candidates for glorification, I was a little disappointed that he did not include Nelson Mandela. It would be a brave person who did not want to glorify Nelson Mandela, particularly after those years spent in Robben Island. One could think of others in that struggle, like Eduardo Mondlane, who sought to throw off the yoke of a fairly cruel Portuguese imperialism. The point I wanted to stress was the conclusion of the Joint Committee on Human Rights, because we put a lot of time into it and we met till late hours. I promise that I will not delay the Committee by quoting at great length from it, but I do think it is appropriate on this point. It stated:
	"The legal certainty concern is that terms such as glorification, praise and celebration are too vague to form part of the criminal offence which can be committed by speaking. The Home Secretary draws a distinction between encouraging and glorifying on the one hand and explaining or understanding on the other. The last two, he says, would not be caught by the new offence, because they do not amount to encouraging, glorifying, praising or celebrating. In our view, the difficulty with the Home Secretary's response is that his distinction is not self-executing: the content of comments and remarks will have to be carefully analysed in each case, including the context in which they were spoken, and there will be enormous scope for disagreement between reasonable people as to whether a particular comment is merely an explanation or an expression of understanding or goes further and amounts to encouragement, praise or glorification".
	I thought that the noble and learned Lord, Lord Lloyd, might take some encouragement from the fact that the Joint Committee had come to that conclusion as well. However, I am sure he will not be so content that in the end we did decide that the crucial point was the issue of intent. I for one have been enormously encouraged by what my noble friend has said today about intent.

Lord Elton: It is worth mentioning that the reason Nelson Mandela is absolutely admirable is not because he is a past terrorist, but because he is a person who managed to forgive his enemies in a most dramatic and important way. I will also mention while I am on my feet that I am entirely on the side of the noble and learned Lord, Lord Lloyd of Berwick, because my uncle was a member of the Resistance in Norway, and I have no wish to be imprisoned for saying what a good job he did.

Lord Mayhew of Twysden: Earlier in our proceedings, the noble Earl, Lord Onslow, asked who might not be a member of the public. I would like to suggest that somebody who undoubtedly would be a member of the public would be a member of a jury invited to try a prosecution under this particular provision. They are not likely to take kindly to being told what it is likely that they should understand as indirectly encouraging the commission of a terrorist offence. Page 2 of the Bill states:
	"For the purposes of this section the statements that are likely to be understood by members of the public".
	The jury are going to say, "Thank you very much—we thought we were there as members of the public to determine what the English language means".
	That can be perfectly well avoided by heeding what has been said already this evening—that this clause is quite unnecessary. Once you have encouragement of an offence, you do not need to go on to specify what should be done in the case of conduct that should be emulated by them in existing circumstances. Emulation is a result of encouragement. The purpose of encouraging is to bring about emulation, so it is quite unnecessary.
	I think the Minister will say that this is included in the Bill for the avoidance of doubt. Unfortunately, it will create much more doubt and she can be spared a lot more trouble from her already far-too-onerous load by dropping it.

Lord Hylton: In drafting the clause, did the Government take any thought at all for the circumstances of Northern Ireland? Those Members of the Committee who have visited that part of the world will be well aware that to this day one sees murals on the gable-ends of houses which can only be thought to glorify paramilitary activity of men uprising against all constituted order. That has been the case for many years. It is well known that there are songs celebrating 1916 or, on the other hand, Orange domination. These things have never been prosecuted. We may all disapprove of them and think that they ought not to exist in an ideal world, but they are there. Surely, the Government are not going to upset what has been considered and accepted policy over a very long period of years.

Lord Thomas of Gresford: I want to follow the noble and learned Lord, Lord Mayhew, in his analysis. Often, the simplest thing is to ask how you would instruct a jury. Surely, all you have to put to them is, "You have heard what was said. You have heard the circumstances. The question for you to determine is what the defendant said. Did it encourage someone to commit a terrorist offence?". That is the end of the story.
	If the trial judge has to start to pull apart subsection (4) to direct the jury, he will run into all sorts of trouble. Members of the public, as the noble and learned Lord, Lord Lloyd, pointed out, can be members of the public of any country anywhere in the world. Perhaps what was said would not encourage anyone in this country, but if it encourages someone in Australia, presumably that is enough. The subsection uses the phrase,
	"conduct that should be emulated by them in existing circumstances".
	Every word that the subsection contains limits the broad question, did what he said encourage?
	Looking at the provision, I wondered what the word "glorify" meant. I took myself off to the Oxford English Dictionary and decided that it was the third meaning:
	"to extol, honour, magnify with praise".
	The dictionary gives a 1631 quotation from John Donne's poem:
	"No chymique [alchemist] yet th' Elixar got, But glorifies his pregnant pot".
	I do not know what that means either, but that is the dictionary illustration for this meaning. It is nonsense. We ask the Minister to explain why on earth this term remains in the Bill.

Lord Kingsland: I find myself in agreement with everything everyone has said so far in the debate. Indeed, I hope that I find myself in agreement with what I am about to say.
	The primary offence of Clause 1(4) lies in its uncertainty. I doubt whether it passes the Article 7 test in the European Convention on Human Rights. An individual has a right, before he does something, to know whether what he is about to do is within or without the law. If you apply that principle to the text of subsection (4), it is impossible for somebody to predict, at the outset of the statement, whether at the end of making it he will or will not have committed an offence. The subsection is riddled with expressions that are vague and incapable of definition. Even when the Bill tries to define expressions, such as "glorification", it obfuscates rather than clarifies.
	Clause 20(2) states that,
	"'glorification' includes any form of praise or celebration, and cognate expressions are to be construed accordingly".
	I should be most interested to hear an explanation of what that means if the noble Baroness feels so inclined.
	Having said that, I readily admit what I said earlier that, provided it is expressed much more narrowly and precisely, there may be a role for an offence of indirect encouragement. To that end we have tabled Amendment No. 111, which is by no means our final thinking on what a definition of "indirect encouragement" might be. It is a first attempt in Committee to try to find our way through the labyrinth. The amendment would be inserted at page 18, line 14, which would define "indirect encouragement" as a,
	"statement describing terrorism in such a way that the listener would infer that he should emulate it".
	I concede that that has its faults; but at least it has the merit of simplicity. It includes all the necessary ingredients that an offence of indirect encouragement might require. I should be grateful if the noble Baroness will tell me what she thinks about it.

Baroness Scotland of Asthal: First, I can tell the noble Earl, Lord Onslow, that I shall certainly make sure that my noble and learned friends the Lord Chancellor and the Attorney-General are appraised of his view that I need more assistance in dealing with this Committee. Bearing in mind that I shall be on my feet for two weeks, I can only echo what the noble Earl has just said.

The Earl of Onslow: I did not mean it as a criticism of the noble Baroness. She really does her best and it is totally unfair to drop her in it—to use a cognate phrase—without the assistance of somebody else.

Baroness Scotland of Asthal: I shall soldier on regardless doing my incompetent best.
	The amendments provide an opportunity to remove the various references to "glorification" in Clauses 1, 2, 3 and 21—and I understand that the noble and learned Lord, Lord Lloyd, would like to remove Clause 21 entirely—and, consequentially, provisions in Clause 22. I think that that intention is clear. The noble Lord, Lord Goodhart, says that this amendment is to save face because it is a manifesto promise. It is odd to describe an expression of the Government's intent, given to the people of this country, who have democratically elected the Government on the basis of that intent as an opportunity to save face. I assure the noble Lord that we intend to keep manifesto promises. We believe that they are important as they are the contract that we make with the people of this country and that we have every intention of honouring.

Lord Thomas of Gresford: Has anyone read the terms of the contract?

Baroness Scotland of Asthal: I am given to understand that, in some households, people read nothing else.
	The issues with which we are dealing are a subset of the offences under Clause 1 concerning encouragement. We think that it provides a useful and helpful guide to courts on interpretation of those issues. I say straightaway to the noble Earl, Lord Onslow, that he can make the comments that he just has with great confidence because we made absolutely clear that the conduct must be glorifying in existing circumstances. I agree with the noble Lord, Lord Elton, when he said that the reason that Nelson Mandela is not included is that throughout his time he promoted peaceful resistance and forgiveness. Peaceful resistance and forgiveness are also demonstrated by Gandhi, another great reformer. They both demonstrated that peaceful resistance is more effective.

Lord Judd: That is an argument from which I am sure that none of us would dissent. The point is that, at that stage, we had full relations with the government of South Africa, who described him as a terrorist. What would be the situation under the Bill?

Baroness Scotland of Asthal: Throughout our debate, I have tried to make clear that we look at the terms, the context and the content and then consider whether the circumstances are such that the offence is made out. If we look at the terms with which we must now deal, we must look at the specific provisions. I made clear that the glorification of terrorist acts in such a way that others could reasonably take it as a direction to them to emulate those acts should be criminalised. We made that absolutely clear. The Government do not believe that it is acceptable that people—we can all think of examples in the recent past—should be allowed to make statements that glorify terrorism and, in so doing, make it more likely that their audience will commit acts of terrorism.
	Unfortunately, there are young and impressionable people in our society who can all too easily be manipulated by those preaching or advocating a message of hate. Such people create a climate of hate in which terrorism can more easily flourish. I am sure that we do not need to trawl through some of the more graphic examples that we have had in the years before introducing the Bill.
	I take up a point made by the noble and learned Lord, Lord Lloyd, when he dealt with the report of the noble Lord, Lord Carlile of Berriew. He suggested that the noble Lord did not support the offence of glorification in that report. That is inaccurate. At paragraph 21, he stated:
	"The original version was in my view capable of drawing some odd results; the present version now concentrates in sub clause (2)(a) on statements designed to encourage emulation. What this means is that effectively the controversial idea of a separate offence simply of glorifying terrorism rightly has been dropped. A more specific state of mind is required of the putative offender. This is a sensible decision, consistent with the concerns I would have expressed about the original draft Bill shown to me. It was not workable in its original form.
	His report continues at paragraph 23:
	"In my view this proposal in its revised form is a proportionate response to the real and present danger of young radically minded people being persuaded towards terrorism by apparently authoritative tracts wrapped in a religious or quasi-religious context. The balance between the greater public good and the limitation on the freedom to publish is no more offended by this proposal than it would be by, say, an instruction manual for credit card fraud were such to be published. I believe that it is Human Rights Act compatible".

Lord Lloyd of Berwick: I thank the noble Baroness for giving way. I was not referring to the report at all. I was referring throughout to speeches made at Second Reading. I listened to and reread them all, and nobody supported this provision. I accept that the noble Lord, Lord Carlile of Berriew, referred to it in his report, but he certainly did not mention it at Second Reading.

Baroness Scotland of Asthal: I thank the noble and learned Lord for that concession. It is important because as the noble and learned Lord—and, indeed, all noble Lords—will be aware, a great deal of work went into its preparation, to study the mischief which any new Bill should have to address. We looked carefully into what the substance of concern was, what the nature of the difficulties was, and how they should be best addressed.
	The noble Lord, Lord Carlile of Berriew, gave us great service in his initial report by outlining those difficulties, which we have taken seriously. They cover the manner in which the radicalisation of young, impressionable people has taken place. Therefore it would be quite wrong to suggest that this provision has neither utility nor importance and that it is not directed toward a specific mischief which needs to be addressed with a degree of vigour.

Baroness Williams of Crosby: I thank the noble Baroness for giving way. I, at least, am one person in this Chamber who finds a strange discordance between the legislation now being discussed to criminalise the glorification of terrorism, the long record of the IRA in glorifying terrorism until recently, and the idea that are we being asked shortly to forgive completely—not just to forgive, but to forget about—people on the run from terrorism. Could that not be described as somewhat "encouraging"?

Baroness Scotland of Asthal: We come back to context. Again and again, we say that one has to look at the issues of context and content. We know that the Northern Ireland issue has a long and intractable history which has been addressed with a degree of sensitivity and care. The noble Baroness knows better than most the difficulties around which resolution of that complex Northern Ireland issue has been approached. The method adopted is one of inclusion, resolution, and a focus on trying to bring about long-lasting peace in that state. I do not believe that those acts in which this Government have participated in trying to achieve that would "glorify" in any sense. I do not intend to give way until I have finished the responses that I want to make. I will then do so since the joy of Committee is that we can endlessly discuss these issues.
	Perhaps I may remind noble Lords that simply condoning terrorism will not be sufficient to constitute a criminal offence. Neither will simply glorifying terrorism. Rather, to be criminal, the glorification must take place in such a way that the person can reasonably infer that the conduct being glorified is done so that such conduct should be emulated in existing circumstances. That "should" and "existing circumstances" are important; mere glorification of terrorism, reprehensible though we would all regard it, is not enough. The likely effect on the audience also has to come into play. We do not see how there can be real objections to that.
	A number of your Lordships, not least the noble and learned Lords Lord Mayhew and Lord Lloyd of Berwick, and the noble Lord, Lord Thomas of Gresford, rightly raised the issue of a jury, with juries being the final arbiters of fact—and quite right too. When this matter comes to be determined, the good sense of a jury would have to be used to decide whether these offences were or were not made out.
	I also draw the attention of the Committee to Clauses 1(5) and 2(6) which make clear that in answering questions about how a statement is likely to be understood and what the public could reasonably infer, the court must have regard to the contents of the statement or publication as a whole and the circumstances of its publication. The test is not a quantitative one, but a qualitative one. The test is whether the surrounding material and context of the statement indicate that the whole statement does not have the effect that a mere extract, which may be objectionable, would have. So it is the context and the content which are important. I hope, therefore, that I can assuage the concerns of the noble Earl, Lord Onslow. Some of the examples given are simply not merited in terms of suggesting that these issues would be caught.
	We also reject any suggestion that the provisions on glorification are unnecessary. They serve as a useful guide to the courts on the conduct which Parliament is seeking to cover in this new legislation. Indeed, not only are they a useful guide to the courts, but if they were to be removed at this stage, the courts would be likely to interpret that removal as meaning that such conduct was not intended to be covered, thus significantly narrowing the offence. Very importantly, they also make it clear, including to the courts, that for the purposes of this offence, acts of terrorism that are glorified must be ones that can be emulated in existing circumstances.
	This form of guidance in legislation is not new. The Protection from Harassment Act 1997 provides an analogy as it contains a description of the conduct involved in harassment. This was included to help clarify what was a new concept to the courts. The subsections relating to glorification in Clauses 1 and 2 are included for the same reason.

Lord Elton: Where do the existing circumstances actually have to exist? We have discovered that the people who may be affected can be anywhere in the world, so presumably it involves the circumstances that exist in Palestine or Argentina.

Baroness Scotland of Asthal: It would be the circumstances that exist at the time when the statement is made.

Lord Elton: I am asking not about time but about place.

Baroness Scotland of Asthal: We have made it clear that glorification can have a very wide application. That has been made clear in our debates to date.

Lord Ahmed: Can my noble friend detail what evidence the Government have of encouragement among those involved in the criminal acts of 9/11 or 7/7? Were they impressionable minds who had been encouraged by glorification by others? The only person to be quoted when giving his statement in Rome said that it had nothing to do with religious glorification, but more to do with the war in Iraq and other international matters. Do the Government have any evidence on encouragement in relation to glorification?

Baroness Scotland of Asthal: My noble friend will know that I am not entitled to rely on information in relation to any current cases because those issues may be sub judice, so I shall try to answer his question more generally than as it relates to the events of 7 July. It is clear from articles recovered from various incidents, such as videos and tapes, that they appear to have played a part in encouragement and indeed in the facilitation of those who would seek to perpetrate acts of terror. We cannot avoid that conclusion. Indeed, if one looks back over the evidence produced and the report prepared by the noble Lord, Lord Carlile of Berriew, and the other evidence brought before committees considering terrorism, we can see that the promulgation of these matters appears to have played a part—and by no means an insignificant one—in the way events then unfolded. We are faced with that not as a technicality or a possibility but as a real issue to be grappled with appropriately.
	I also refer to Clause 21 because the noble and learned Lord, Lord Lloyd of Berwick, signalled his intention to oppose that clause, too. Organisations that glorify terrorism create a climate in which terrorism is seen not just as acceptable but as something to be emulated. This is clearly something we would seek to prevent and that is the purpose of Clause 21. It is important to note that the noble Lord, Lord Carlile of Berriew, in his independent report on the proposed legislation said of this clause that:
	"extending the list to include the organisations envisaged in the clause is a proportionate limitation on the freedom of association in relation to the greater public good" .
	The Government's position is clear: if an individual can be prosecuted for making statements that glorify terrorist acts, which others could reasonably infer as encouraging emulation of those acts, then organisations ought to "walk the line," too. What is sauce for the goose, we say in this instance, should also be sauce for the gander.
	We believe that a strong case exists for the creation of these offences and that there is a clear case to include them. We do not believe, as the noble Lord, Lord Kingsland, contends, that it introduces uncertainty; nor do we believe that the Article 7 test is not met. We believe, that by virtue of strengthening the Bill in this way—and I thank my noble friend Lord Judd for his comment about being "greatly comforted" by that—we have dealt with the whole issue of intent by introducing the question of specific intent and subjective recklessness. Those two factors mean that the glorification offence has to be dealt with within that context. In terms of proof, it is clear that that offence is much stronger than it would otherwise be.
	I understand what the noble and learned Lord, Lord Mayhew, means when he says that it is "all caught now" by encouragement and so a specific species of encouragement is unnecessary; it could simply be expunged. I have already identified the reason why we say "no" to this: it a manifesto commitment and, just as importantly, it is an exemplar of how the power should be used. It makes it clear that it should be used to deal with specific current matters that are not retrospective, so the worries about Robin Hood and all those other merry men that have been trailed out need not concern us at all. I understand that this issue has caused concern, but we believe that there is sufficient merit to allow it to continue.

Lord Goodhart: I want to follow up the suggestion that it is not retrospective. Clearly it is not retrospective in that you cannot prosecute somebody for past glorification. However, surely if somebody chooses, after the Bill has come into effect, to glorify something that happened before the Bill came into effect, that could still be glorification, leading to prosecution under the Act.

Baroness Scotland of Asthal: Only if it could be related to the then current circumstances—

The Earl of Onslow: I—

Baroness Scotland of Asthal: Can I finish the sentence? I am more than happy to sit down, but if I can just finish one sentence after the other it does help me enormously. The noble Lord, Lord Goodhart, said that the inclusion of "glorification" is unnecessary because it does not add anything to "encouragement". The noble and learned Lord, Lord Lloyd of Berwick, said that we should not have it because it is an unwarranted restriction on freedom of speech. We cannot have both. We say that it is necessary; that it adds something and that it deals with a mischief. It is now proportionate, not least because we have made "intention" such a tough provision with which to deal as a result of our agreement with Clause 9.

The Earl of Onslow: If someone is in rebellion and you say, "Remember what the Spaniards did in 1814 and remember what the Afghans did", you are then glorifying terrorism to encourage someone else to behave in a similar fashion against oppressors. That means exactly what I was saying earlier: that it will become a criminal offence to say those things. The Minister almost said so.

Lord Thomas of Gresford: It certainly is a fact that the IRA was influenced by the events of 1797 and Wolfe Tone and people of that nature. If anyone was glorified, the people of that time were in order for people in Northern Ireland to emulate their rebellion 200 years ago.

Lord Mayhew of Twysden: I invite the Minister—who has been courtesy itself—to reflect on a point she made a few moments ago. If the amendment were to be adopted and the glorification part were to be dropped, this might be interpreted by the courts as indicating that glorification was not something caught by "encouragement". That cannot be right. The courts would look at this debate, for example, and would see how the argument had gone—and it certainly would not sustain that interpretation. I thought the Minister recognised that a moment or two ago when she said that it was in there to be an exemplar of what was encouraging behaviour; that it cannot be both ways. On the contrary, I think the courts would glorify—to coin a phrase—the noble Baroness for relieving them of a totally unnecessary complexity.

Baroness Scotland of Asthal: I hear what the noble and learned Lord says in relation to that. I am confident that there are no circumstances when it is likely that I will be glorified. I have a very clear appreciation of my own ability. If I did not have it before today, I shall certainly have it afterwards.
	The issue for the courts will always be one of how they interpret these provisions. I wish I could be as sanguine as the noble and learned Lord that the courts spend as much time, on a Pepper v Hart basis, looking at our debates as some of us would perhaps wish. The courts have also had a tendency to say, "We will look at the Bill and the terms contained within it. Although Hansard may assist us, the debates in the House are of such interesting quality that one can almost subtract from it anything one wishes about where the balance was at the end of the day".
	This is a very clear opportunity to give the courts examples of things which specifically should be caught. I have already explained why that is important. A specific, identified mischief needed to be addressed and the subsection addresses it. It is not otiose; it does not detract from the provisions in Clause 1(1) or Clause 2 in relation to intent and it is not in conflict with anything therein and would be helpful. This commitment was made as part of our manifesto and we intend to honour it. I have no need to remind your Lordships that this provision met with assent in the other place, in such a way as to suggest that it would doubtless meet with assent again.

Lord Lloyd of Berwick: I am grateful to the Minister for that reply. She referred to Clause 21, to which we will come in due time, but I do not think she was expecting me to deal with it today.
	I thank all noble Lords who have taken part in the debate. I agree with those who say that this offence, or this way of formulating the offence, is unnecessary—I think they include the noble Lord, Lord Goodhart—and I agree with those who say that it is unreasonable because juries will make up their own minds about how something is to be understood by a member of the public, and they include the noble and learned Lord, Lord Mayhew. I certainly agree with those who say it is much too vague to form the basis of a criminal offence in our law. Above all, it is a restriction on freedom of speech, which is not justified in the circumstances. It is not a proportional response and it is therefore not necessary in a democratic society. It will, in due course—inevitably, in my view—be held to be contrary to Article 10 of the convention. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 11 and 12 not moved.]

Lord Brougham and Vaux: Before calling Amendment No. 13, I must advise the Committee that if it is agreed to I cannot call Amendment No. 14, due to pre-emption.

[Amendment No. 13 not moved.]

Lord Brougham and Vaux: Before calling Amendment No. 14, I must advise the Committee that if it is agreed to I cannot call Amendments Nos. 15 or 16, due to pre-emption.

[Amendments Nos. 14 to 18 not moved.]

Lord Brougham and Vaux: Before calling Amendment No. 19, I must advise the Committee that if it is agreed to I cannot call Amendment No. 20.

[Amendment No. 19 not moved.]

Lord Goodhart: moved Amendment No. 20:
	Page 2, line 30, leave out "and" and insert "or"

Lord Goodhart: In speaking to Amendment No. 20, I shall speak to Amendments Nos. 41 and 42 as well.
	All three amendments refer to special defences where certain conditions are imposed. They are cumulative, in the sense that each of several conditions has to be satisfied to obtain the benefit of the defence. The provisions are Clauses 1(7) and 2(8) and (9). The position on these has been altered by the Government's statement that they intend to remove paragraphs (a) from Clauses 1(7) and 2(9). This paragraph limits the availability of the defences to cases against Internet providers.
	Clause 1(7) will therefore now require the satisfaction of both the remaining paragraphs. Paragraph (b) requires that the statement neither expresses the views of the defendant nor has his endorsement, while paragraph (c) requires that it is clear that it does not express his views and have his endorsement. It is not clear to me why both paragraphs are needed, since they seem to say much the same thing. Perhaps the Minister can explain.
	Under the Government's concession on objective recklessness, the prosecution must prove that the defendant had the necessary intention or subjective recklessness. It would be inconsistent with that concession to require the defendant to prove that the statement did not express his views, since it is up to the prosecution to prove that it did. Paragraph (b) should therefore go. By the same reasoning, paragraph (c) should also go. If the prosecution fails to prove intent or recklessness, it is surely not open to it to say, "We can still convict you because you did not make it clear that the statement did not reflect your views".
	The logical conclusion of both concessions, taken together, is that Clause 1(7) is inconsistent with them and must go in its entirety. That reasoning does not apply to the subsections of Clause 2, since the Government have not so far accepted the need to introduce an intention test into Clause 2.
	Clause 2(8) requires three conditions to be fulfilled for the defence to be available: that the defendant has not examined the publication; that he had no reasonable grounds for suspecting that it was a terrorist publication; and that objectionable parts of the statement did not have his "endorsement". The only one of these that matters is the second condition. Given that whether the publication is a terrorist publication depends, at least in part, on the context, it is clearly possible that the defendant could have examined the document and still have no reasonable grounds for suspecting that it was a terrorist publication. If the defendant had no reasonable grounds for suspecting that it was a terrorist publication then it seems to me to be wholly irrelevant whether or not he endorsed any part of it. Here, the second is the only test that needs to be satisfied and the other two, in paragraphs (a) and (c), should be removed.
	Later amendments will press for the inclusion of an intention test for offences under Clause 2, and if those are incorporated into the Bill, then subsections (8) and (9) of Clause 2 will become otiose. I beg to move.

Baroness Scotland of Asthal: I am going to disappoint the noble Lord, Lord Goodhart, because we do not believe that Clause 1(7) or Clause 2(9) are incompatible with the amendments that we have agreed to—Amendment No. 9 in relation to Clause—

Lord Goodhart: I did not say that of Clause 2(9); I was referring only to Clause 1(7).

Baroness Scotland of Asthal: I will then restrict my comments to Clause 1(7). We do not think that those two are incompatible and I shall make it plain that we make the concession in relation to the subjective test predicated on the removal of Clause 1(7)(a) but the retention of subsections (b) and (c) as a defence. And for the purposes of clarity, before I move to the substance of the comments I will make on Clause 2(9), it might assist the House if I indicate, as has already been accepted by the noble Lord, Lord Goodhart, that we would remove subsection (9)(a). But then if we look logically—we do not have the draft, so I am trying to assist on the basis for debate—we would have to add an "and" after paragraph (b) and then the "and" that appears at the end of paragraph (c) would become "or". So, it would read (b) "and" (c) "or" (d). I say that at this stage so that as I am dealing with the other comments, noble Lords may wish to bear that in mind.
	Let us come back to the defence that we now propose in Clause 1(7). We do not believe that Amendment No. 20 would be useful, for the following reasons. If the limbs were alternatives, it would be possible for defendants to take advantage of the alternatives to disguise their real aims or beliefs. Given the relatively low standards of proof involved in demonstrating a defence it might be possible for defendants to show that they did not endorse the statement in question, for example by calling friends up to confirm the point even though it was clear in the circumstances that prevailed that they did. This would render the offence ineffective.
	Exactly the same point arises in the context of Amendment No. 42, which seeks to make a corresponding change to Clause 2(9). As I have indicated, we are happy to remove the first limb of the offence but it will be important that the remaining limbs continue to be governed by "and". Otherwise, we could again have the situation where a person seeks to show that the publication which he distributed does not reflect his views when it is quite apparent because of the circumstances of the case that that is not true.
	Unfortunately, we cannot accept Amendment No. 41 either, because it concerns the defence in Clause 2(8), which has no parallel in Clause 1. Perhaps I may explain why it is important that all three limbs of Clause 2(8) are retained. It should be demonstrated for us to understand the validity of the defence. If the word on line 9 on page 4 is "or" rather than "and", it would be possible for a defendant to say that he had reasonable grounds for suspecting that it was a terrorist publication and that he endorsed it, but that he had deliberately not bothered to examine it. For this reason, "and" must be retained in line 9 on page 4.
	However, I can assure your Lordships further on this point. I suspect that the noble Lord, Lord Goodhart, and others were concerned because they envisaged librarians being unable to avail themselves of this defence if they had examined the publication, suspected that it might be a terrorist publication, did not endorse it, but nevertheless felt obliged because of their professional duties to disseminate it. They are quite right that such persons would not be able to use this defence. But such persons would be able to use the defence in Clause 2(9) when it is expanded on Report in the way that I have set out. For this reason, Amendment No. 41 is not necessary. I can see why it is proposed now, but once we amend the Bill as I have outlined, it will be so.
	Those who would not be able to avail themselves of the revised defence in Clause 2(9) should not be able to use the defence in Clause 2(8) if it is not available to them in its current form. Therefore, I hope that the noble Lord will be satisfied that I have explained why we need to retain Clause 1(7) and why the proposed amendments to Clause 2(9) will meet the concerns that have been raised in relation to it in a way that noble Lords will feel is appropriate.

Baroness Williams of Crosby: Perhaps I may turn for a moment to Clause 2(9). I must say how much I respect the Minister's immense endurance and willingness to be as helpful as she can to all of us in this Committee discussion.
	As things stood before the Minister's announcement of the concession of a further amendment from the Government, there was very powerful legal advice to indicate that the defence under Clause 2(9) would be extremely difficult to make effective. Since it involves, first, whether the document has been examined and, secondly, whether it has been suspected—in other words, whether it has been examined, had views expressed about it and been endorsed—it is exceedingly difficult to meet all three requirements together for the reasons that we advanced earlier. A great deal therefore depends on the burden that the Government's concession can carry, particularly in relation to librarians and academics. It may be, as the Minister explained to us earlier, that it will go sufficiently far, but will she indicate whether there are, in a sense, professional obligations on particular individuals that effectively would allow them to advance the defence under the extended subsection (9) in a way that would make that defence more likely to be viable than it is without that government amendment?
	The Minister will appreciate that one of the difficulties of the Committee is to weigh the precise substance of those proposals without the wording before us. Since she is obviously going to go away to consider that wording, will she bear in mind the possibility of some phrase about the obligations that rest on certain professions? The noble Lord, Lord Eatwell, and others talked about the special problems facing deposit libraries. Those problems really are acute and librarians face them with a straight conflict of legal obligations which, as the Bill stood, were almost impossible to resolve. The Government's concessions may enable them to be resolved, but as things stand and without seeing that new wording, it is quite difficult for me to see how they can be.

Lord Eatwell: I endorse what the noble Baroness has just said. May I ask a question of my noble friend, which she might wish to reflect on when redrafting Clause 2(9) to bring it before us? It is difficult to discuss the redraft, because we do not really know what it will look like. Clause 2(9)(d) is drafted in such a way that, with respect to the offence of providing information of assistance in the commission of acts, the conduct in relation to the publication was not intended by the person to provide or make available assistance. However, that is not so with respect to the issue of direct or indirect encouragement, and I would like the Minister to reflect on whether Clause 2(9)(b) should be drafted in the same form as 2(9)(d), so that it reads something like:
	"that the conduct in relation to that publication, so far as it contained matter by reference to which it was a terrorist publication by virtue of subsection (2)(b), was not intended by him to provide direct or indirect encouragement",
	and so on.
	There is a puzzle here. Why does providing assistance require a demonstration of intent, but encouragement does not? I know that we will discuss this at a later time, but since the clause is being prayed in aid of the Minister's rejection of the amendment in respect of subsection 2(8), perhaps she would consider that question when drafting the new clause.

Lord Goodhart: I should start by apologising to the Minister for the fact that, as a result of the announcement at an early stage of today's debate of the concessions by the Government, my speech on the amendments went beyond the scope of the amendments. We are now in somewhat different territory here. Having said that, I remain of the opinion that Clause 1(7) is now entirely otiose and should simply go. On the amendments to Clause 2, in particular Clause 2(9), the Government have indicated an intention to produce further amendments, so obviously I will need to consider this before deciding whether to take any further action on the matter. It is at least possible that I shall want to take the matter up at a later stage of the Bill. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bassam of Brighton: I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.
	House resumed.
	House adjourned at two minutes to ten o'clock.

Monday, 5 December 2005.